In 2008, New Castle County, Delaware (Defendants) amended their code to subject property owners to civil penalties through an “Instant Ticketing System for Common Violations” (ITS.) The ITS may be used to issue tickets to the owner of a property for property code violations such as disposal of rubbish and prohibited growth of weeds and grass for example. Upon receipt of a complaint, a notice of alleged violation is mailed to the property owner where they are then responsible for correcting the violation within ten days. If the Code Official determines that the violation persists beyond this point, a $50 ticket is issued by mail which doubles every 30 days should payment not be made. There is no pre-deprivation show cause hearing required for these particular more common types of property code violations. There is, however, an appeals process though the County requires that the ticket must be paid in order for an appeal to be received. The Plaintiffs claimed this violated their constitutional due process rights.
The court explained that the Plaintiff had to first demonstrate a protectable interest-of life, liberty or property. In order for the plaintiff to recover for an alleged procedural due process violation they must ultimately demonstrate that they were deprived of a protectable interest by the state, and that the state procedure for challenging the deprivation does not satisfy the requirements of procedural due process. Further, substantive due process includes among its protections the general protection against certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.
The Plaintiff’s claimed that they have a protectable liberty interest in “their right to use their property in the manner they see fit without government interference.” The court, however, found that while it is true property rights have been important common law rights, they are not fundamental rights in the constitutional sense and are generally limited to freedom from restraint that impose an atypical and significant hardship. The court next looked at the Plaintiffs property interests which they held is a valid protectable property interest. Having established such protectable interests, the court then considered the issue of whether the defendant had violated either plaintiffs’ substantive or procedural due process rights by the conduct at issue.
In examining the Plaintiff’s claim of substantive due process violation, the court found that Plaintiff’s complaint does not allege that the code was arbitrarily or unfairly applied to them. In next looking at the Plaintiff’s procedural due process rights, the court found that the Plaintiffs have stated a valid claim. The court said that the appeals process and the waiting period involved was unfair given the fact that a property owner could possibly continue to receive fines despite the fact that they were appealing the County’s allegations. The court ultimately granted the County’s motion to dismiss with respect to the Plaintiffs’ liberty interest claim and property interest claims as it related to substantive due process but denied the County’s motion with respect to Plaintiff’s property interest claim as it related to procedural due process.
Dowd v. New Castle County, Delaware, 2010 WL 3735289 (U.S. Dist. Ct., Delaware, 9/21/2010)
The opinion can be accessed at: http://www.ded.uscourts.gov/SLR/Opinions/Sep2010/10-82.pdf
