“NIXON” AND “BREAK-IN” SORT OF GO TOGETHER
Today’s case is all about someone named Nixon, government break-ins, abuses of power and that sort of thing. You’re thinking Watergate, 1972? That’s so 20th Century. There weren’t even any Russians involved…
The Nixon we’re talking about is Diane Nixon, and the government is that of Montgomery County, Maryland. It seems that Nixon — who was the victim here, not the NCA — had a rather unkempt lawn. The Housing Code people inspected and sent her a certified letter telling her to clean it up or the County government would (at her expense). Ms. Nixon received the letter and made some half-hearted attempt to straighten the place up. But after the ten days provided for in the County’s letter elapsed, the housing inspector and a gang of worker broke through a gate, cut the grass, removed the trees and hauled off the junk.
Ms. Nixon, apparently more adept at scape-goating than landscaping, sued the County, claiming that it and its employees had committed grievous violations of her due process rights by giving inadequate notice of what it intended to do, by trespassing and destroying perfectly good trees, and — while they were at it — hauling off a picnic table.
The federal district court dismissed the case, finding that the County had complied with due process by giving adequate notice of what it intended to do and when, and the Court of Appeals agreed. At its heart, due process requires notice and an opportunity to be heard. Ms. Nixon got adequate notice and she was afforded a right to a hearing, which she didn’t ever exercise. As for the picnic table, the trees and a wheelbarrow that the workers allegedly spirited off, the State had a procedure for Ms. Nixon to employ in making claims for such damages. After all, due process is nothing more that “the process that is due.”
Nixon v. Montgomery County, 251 Fed.Appx. 141 (4th Cir., 2007). The Montgomery County Department of Housing and Community Affairs received a complaint about Diane Nixon’s place in Silver Spring, a housing code inspector determined that it was in violation of the County Code. He sent Nixon a notice by certified mail, return receipt requested, stating that her property was in violation of the Housing Code, which prohibits “weeds and generalized growth to exceed 12 inches in height limit in a subdivision.”
The notice complied with the Code: it offered Nixon a 10-day waiting period, the opportunity to appeal the notice, and the telephone numbers for the Board of Appeals and for the inspector. But the notice warned that after the waiting period, the County would enter the property for the purpose of bringing it into compliance with the Housing Code. After receiving the letter, Nixon failed to appeal, but she said he hired some youths to help clean up the place. Nonetheless, after the 10-day period expired, the inspector and a work crew arrived at Nixon’s property, entered it through a chain link gate that they removed from its hinges, and proceeded to clean up the place. The inspector said the property was still in violation of the Code when he arrived on November 7, and that, in cleaning the property, he cut back and removed dead vegetation, vines, overgrown bamboo, logs of wood, and dead, dying, or leaning trees. He also removed a picnic table and wheelbarrow, maintaining that these items were unusable and constituted trash.
Nixon claimed that she had sufficiently cleared the yard of overgrowth to be within the Housing Code, and that the inspector actually destroyed healthy trees, ornamental shrubs, and plants with an estimated value of $17,362. She sued the inspector and the County alleging violations of her constitutional rights to due process and freedom from unreasonable search and seizures under both the federal and state constitutions, as well as state tort claims for trespass and conversion. The federal district court granted summary judgment to all defendants on all claims.
Held: The Court of Appeals upheld the dismissal of her claim. The Due Process Clause guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of the law.” The general rule developed under the Due Process Clause is that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.
Nixon claimed the County’s notice was deficient. But the Court said the notice had to be judged according to three standards: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the probable value, if any, of additional or substitute procedural safeguards. Finally, the County had to weigh Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Applying these factors, the Court concluded that the County provided constitutionally adequate process to Nixon concerning the removal of the items covered by the Code.
The removal of the solid waste items, covered by Chapter 48 of the Code, appeared closely related to the cleanup of the Chapter 58 items. Although the notice lacked specificity, the Court said, it clearly presented the County’s general concerns, indicated the County’s proposed solution, and provided Nixon with a means to appeal if she so chose.
Nixon also claimed the County exceeded its legitimate authority under any section of the Housing Code by destroying healthy trees and a functional picnic table and wheelbarrow. But the Court said that Nixon didn’t have a viable due process claim because Maryland provided a post-deprivation process that offered Nixon sufficient redress for her alleged property loss.
– Tom Root