Posted by: Patricia Salkin | September 24, 2020

Fed. Dist. Court of WV Dismisses Due Process Claims Arising from No-Contest Plea Deal Regarding a Raze and Repair Order

This post was authored by Matthew Loescher, Esq.

Plaintiff was given a “raze and repair order” for a hotel he owned, and a summons to appear in municipal court; he alleged that he negotiated with defendant Warmuth to plead no contest and in exchange “the judge would fine him $500 and void the fine once the repairs were completed.” After pleading no contest, plaintiff was fined $10,000; however, “the judge said he would void the $10,000 fee if plaintiff opened the restaurant and dismiss the case.” The Complaint further alleged plaintiff received a “raze and repair order” on a second property, a single family house. Plaintiff contends that defendants have made it difficult to get the necessary permits to complete required repairs on the house Plaintiff alleged that through a long process of making repairs, defendants had continually changed their position or required new repairs “resulting in an endless cycle of processing for the Plaintiff due to the baseless and erroneous whims of” the defendants.

At the outset, the court noted that, pursuant to the Charter of the City of Wheeling, the city had discretion in the issuance of fines and permits and, therefore, plaintiff did not have a claim of entitlement in regard to either the alleged deal to dismiss the fees in his case or to the issuance of a building permit. Additionally, even assuming plaintiff had a legitimate claim of entitlement in regard to the alleged plea deal, the court found that plaintiff failed to allege that the defendants actually reneged on it. The record reflected that the negotiated deal was “if plaintiff changes his plea to no contest the judge would fine him $500 and void the fine once the repairs were completed.” While the plaintiff argued that the repairs requested by the city were unreasonable, he did not allege that he had actually completed the repairs or opened the building.

The court next found that even if plaintiff had a vested property interest and was deprived of it, the Complaint still failed to state a claim that the procedures afforded to him were constitutionally inadequate. Here, despite plaintiff’s assertion that the City “failed to provide the Plaintiff the opportunity to contest their matters originally,” it was undisputed that plaintiff had an opportunity to contest the “raze and repair order” and chose to negotiate a plea of no contest. The facts that the municipal court judge imposed a fine higher than plaintiff anticipated, or higher than expected by the city solicitor, was not a valid basis for claiming plaintiff was deprived of due process. Lastly, the court found that the state law claims were barred by the immunity provided by W.Va. Code § 29-12A-5(a) (9), and dismissed them on that basis.

Jaber v City of Wheeling, WV, 2020 WL 5658355 (ND W VA 9/23/2020)

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