Hussein Mann v. Calumet City, Illinois ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1681
H USSEIN H. M ANN and D EBRA H OUSTON-M ANN,
Plaintiffs-Appellants,
v.
C ALUMET C ITY, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 555—David H. Coar, Judge.
No. 09-2481
A LONZO S MILEY, on behalf of himself and all others
similarly situated,
Plaintiff-Appellant,
v.
C ALUMET C ITY, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3017—Wayne R. Andersen, Judge.
2 Nos. 09-1681, 09-2481
S UBMITTED O CTOBER 2, 2009—D ECIDED D ECEMBER 7, 2009
Before B AUER, P OSNER, and SYKES, Circuit Judges.
P OSNER, Circuit Judge. These consolidated appeals
bring before us for the second time challenges to the
constitutionality of an ordinance of Calumet City, Illinois,
that forbids the sale of a house without an inspection to
determine whether it is in compliance with the City’s
building code. Calumet City Code § 14-1. The previous
appeal was from a judgment in favor of real estate
brokers who had challenged the ordinance. We ordered
the case dismissed because the brokers lacked standing
to challenge the ordinance. MainStreet Organization of
Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007). If
anyone’s constitutional rights were infringed, they were
the rights of a homeowner who wanted to sell his house
without inspection, and the brokers did not have
standing to litigate rights belonging to their clients. The
panel majority based this conclusion on the “prudential”
doctrine of standing rather than on Article III of the
Constitution; Judge Sykes, in a concurring opinion, ex-
pressed the view that the brokers also lacked Article III
standing. 505 F.3d at 749.
The standing problem is solved in the cases before us,
which are brought by and on behalf of residents of Calu-
met City who were prevented from or delayed in selling
their houses by the ordinance. The district judges dis-
missed the suits for failure to state a claim.
Nos. 09-1681, 09-2481 3
Both suits challenge the constitutionality of the
ordinance “on its face,” a phrase of uncertain meaning, as
we pointed out in A Woman’s Choice-East Side Women’s
Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002). What the
plaintiffs seem to mean by it is that “no set of circum-
stances exists under which the [ordinance] would be
valid,” which is the definition in United States v. Salerno,
481 U.S. 739, 745 (1987); see also United States v. Nagel, 559
F.3d 756, 764-65 (7th Cir. 2009); Rancho Viejo, LLC v.
Norton, 323 F.3d 1062, 1077-78 (D.C. Cir. 2003). The Su-
preme Court is not sure about the definition, however,
Washington State Grange v. Washington State Republican
Party, 128 S. Ct. 1184, 1190 (2008). Nor are we, as we
indicated in Woman’s Choice.
One way to think of condemning a statute “on its
face” is as an exception to the principle that a statute
should if possible be interpreted in such a way as to
avoid its being held unconstitutional. See, e.g., Rancho
Viejo, LLC v. Norton, supra, 323 F.3d at 1077-78. Sometimes
courts refuse to adopt a narrowing interpretation, or
to sever an objectionable provision and allow the rest
to stand, and so strike down the entire statute even
if applying just part of it to the particular facts of
the case would not have raised a serious constitutional
question.
In some cases statutes are invalidated as unconstitu-
tional on their face because of a supposed in terrorem
effect; that is the doctrine of Thornhill v. Alabama, 310 U.S.
88, 97 (1940); see Church of the American Knights of the
Ku Klux Klan v. City of Gary, 334 F.3d 676, 683 (7th Cir.
4 Nos. 09-1681, 09-2481
2003), which permits a person to challenge a statute
limiting free speech even though his particular speech,
though not that of others within the scope of the statute,
could constitutionally be suppressed. And finally it is
always an option for a plaintiff to challenge a statute
without dwelling on particulars of his case that might
invalidate the application of the statute to him. That is the
course that the plaintiffs in these cases have chosen. They
don’t argue that the City unreasonably delayed the sale
of their property or unreasonably prevented the sale;
they argue that even punctilious compliance with the
procedural safeguards created by the ordinance cannot
protect their constitutional rights. They are challenging
the ordinance as written.
They have an uphill fight. “Point of sale” ordinances
such as this one are common and have withstood con-
stitutional attack in all cases that we know of in which the
ordinance avoided invalidation under the Fourth Amend-
ment by requiring that the city’s inspectors obtain a
warrant to inspect a house over the owner’s objection.
Joy Management Co. v. City of Detroit, 455 N.W.2d 55, 57-
58 (Mich. App. 1990); Butcher v. City of Detroit, 347 N.W.2d
702, 707-08 (Mich. App. 1984); Hometown Co-operative
Apartments v. City of Hometown, 515 F. Supp. 502, 504 (N.D.
Ill. 1981); Currier v. City of Pasadena, 121 Cal. Rptr. 913, 917-
18 (App. 1975); cf. Greater New Haven Property Owners Ass’n
v. City of New Haven, 951 A.2d 551, 562-66 (Conn. 2008);
Tobin v. City of Peoria, 939 F. Supp. 628, 633 (C.D. Ill. 1996);
Dome Realty, Inc. v. City of Paterson, 416 A.2d 334, 349-50
(N.J. 1980). That means all cases other than Wilson v. City
of Cincinnati, 346 N.E.2d 666, 671 (Ohio 1976), and Home-
Nos. 09-1681, 09-2481 5
town Co-operative Apartments v. City of Hometown, 495
F. Supp. 55, 60 (N.D. Ill. 1980). Calumet City’s ordinance
contains such a requirement.
The plaintiffs appeal mainly to the due process clause
of the Fourteenth Amendment, which so far as bears on
their case forbids a state or local government to deprive
a person of property without due process of law. No
court thinks, however, that this means the state can’t
regulate property—can’t for example enact building
codes and zoning regulations even though such measures
limit the property owner’s right to do what he wants with
his property. Village of Euclid v. Amber Realty Co., 272 U.S.
365, 394-95 (1926), so held and has been followed in
innumerable cases. See, e.g., Town of Rhine v. Bizzell, 751
N.W.2d 780, 793-96 (Wis. 2008); Napleton v. Village of
Hinsdale, 891 N.E.2d 839, 853 (Ill. 2008); General Auto
Service Station v. City of Chicago, 526 F.3d 991, 1000-01
(7th Cir. 2008); Coniston Corp. v. Village of Hoffman Estates,
844 F.2d 461, 465-66 (7th Cir. 1988); Albery v. Reddig, 718
F.2d 245, 250-51 (7th Cir. 1983); Davet v. City of Cleveland,
456 F.3d 549, 552-53 (6th Cir. 2006). The principle is illus-
trated by a notable recent decision upholding the validity
of an ordinance that prohibited keeping more than three
dogs on property in a residential district. Luper v. City of
Wasilla, 215 P.3d 342, 348-49 (Alaska 2009); see also Greater
Chicago Combine & Center, Inc. v. Chicago, 431 F.3d 1065,
1072 (7th Cir. 2005) (keeping pigeons in residential areas);
Hull v. Scruggs, 2 So. 2d 543 (Miss. 1941) (property owner
can kill trespassing dog that has irresistible urge to suck
eggs).
6 Nos. 09-1681, 09-2481
What is true is that a regulation may so constrict the
rights of a property owner as to be deemed a “regulatory
taking,” entitling the owner to compensation under the
takings clause of the Fifth Amendment for the diminution
of the market value of his property. Hodel v. Irving, 481
U.S. 704, 716-17 (1987); but cf. Andrus v. Allard, 444 U.S.
51, 64-68 (1979). And the Supreme Court has held that the
takings clause is made applicable to state action by the
Fourteenth Amendment, e.g., Kelo v. City of New London,
545 U.S. 469, 477-80 (2005). But our plaintiffs aren’t pro-
ceeding under the takings clause. Their argument is that
the restrictions that the ordinance places on their
property rights are irrational and therefore deprive
them of property without due process of law, entitling
them to enjoin the ordinance rather than just insist on
compensation. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,
536-37, 540-43 (2005); Cavel International, Inc. v. Madigan,
500 F.3d 551, 556 (7th Cir. 2007); Greater Chicago Combine &
Center, Inc. v. City of Chicago, supra, 431 F.3d at 1071-
72; Guggenheim v. City of Goleta, 582 F.3d 996, 1030-31
(9th Cir. 2009).
But building codes, to which the challenged ordinance
is ancillary, cannot be thought irrational. They do
increase the cost of property (as do other conventional
regulations of property), but if reasonably well designed
they also increase its value. Without them more buildings
would catch fire, collapse, become unsightly, attract
squatters, or cause environmental damage and by doing
any of these things reduce the value of other buildings in
the neighborhood. Assuring full compliance with building
codes is difficult after a building is built, because most
Nos. 09-1681, 09-2481 7
violations are committed inside the building and thus out
of sight until a violation results in damage visible from
the outside. Hence the ordinance, another objective of
which is to prevent the surreptitious conversion of single-
family into multi-family residences (for example by the
owner’s constructing a second kitchen or additional
bathrooms), in violation of zoning codes the constitu-
tionality of which is not questioned.
All this seems eminently reasonable (as reasonable as
conditioning the transfer of title to real estate on payment
of any real estate taxes due on the property—another
common restriction on the sale of property), and indeed
the plaintiffs do not, except in passing, challenge the
principle of point of sale ordinances. Their focus is on
the procedural adequacy of the method by which
Calumet City’s ordinance is enforced. They say it fails to
protect a homeowner from unreasonable limitations on
his property rights; one of those rights is the right to
sell the property. But they fail to indicate concretely
what the ordinance would have to provide in order to
pass a workable test of reasonableness. It provides the
conventional procedural safeguards and if these are
inadequate we don’t know what adequacy requires.
The ordinance requires a property owner to notify the
City government of a proposed sale of his property. The
City has 28 days after receiving the notice to conduct a
compliance inspection. During that period it must notify
the owner of its intention to conduct the inspection. If
he responds that he won’t consent to an inspection, the
City has 10 days within which to get a warrant from
8 Nos. 09-1681, 09-2481
a judge, limited to authorizing an inspection for compli-
ance with the building code. The City’s building code is
a standard such code (not an invention of Calumet City)
called the “2006 International Property Maintenance
Code.”
Within three business days after conducting the inspec-
tion (whether or not pursuant to a warrant) the City must
notify the owner whether the house is in compliance
with the building code and, if not, what repairs are re-
quired to bring it into compliance. (If the inspection
discloses an unlawful conversion of the house to a multi-
family dwelling, the order, instead of being a repair
order, will order deconversion.) After the City is notified
that the repairs have been made or deconversion effected,
it has three business days within which to reinspect. An
owner who is in a hurry to sell the house can do so
before completing the ordered repairs or deconversion if
his buyer posts a bond equal to the expected cost of
bringing the house into compliance. The buyer then has
180 days to complete the repairs or deconversion; if
he fails to do so, the City can ask a court to order him
to do so.
The owner can appeal a repair or deconversion order
to the City’s Zoning Board of Appeals, where he is
entitled to a full hearing. The appeal stays the City’s
order. An owner who loses in the board of appeals is
entitled to judicial review in the Illinois state court
system in the usual manner.
We cannot think of what more could reasonably be
required to protect the homeowner’s rights, including his
Fourth Amendment rights, which the ordinance’s
Nos. 09-1681, 09-2481 9
warrant provisions fully protect. Currier v. City of
Pasadena, supra, 121 Cal. Rptr. at 917-18; Hometown Co-
operative Apartments v. City of Hometown, supra, 515 F. Supp.
at 504; cf. Tobin v. City of Peoria, supra, 939 F. Supp. at 631-
33; see generally Camara v. Municipal Court of City and
County of San Francisco, 387 U.S. 523, 538-40 (1967), over-
ruled on other grounds, Califano v. Sanders, 430 U.S. 99(1977). The plaintiffs’ arguments are either frivolous, or
pertinent only to a challenge to how the ordinance is
applied in particular cases by the City or its board of
zoning appeals or the state courts, and that as we know
is not the nature of their challenge.
In the frivolousness category is the argument that the
ordinance fails to provide for “pre-deprivation” procedure.
The plaintiffs want the City to have to go to court, or
perhaps conduct an administrative hearing of some sort,
before it can order repairs or deconversion. But remember
that the homeowner can challenge the order, and if he does
it is stayed; that is pre-deprivation process. McKesson Corp.
v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 36-
37 (1990); McKenzie v. City of Chicago, 118 F.3d 552, 558
(7th Cir. 1997); Marco Outdoor Advertising, Inc. v. Regional
Transit Authority, 489 F.3d 669, 673-74 (5th Cir. 2007). “All
that is required is . . . notice and an opportunity to be
heard before being deprived of a protected liberty or
property interest.” Tarantino v. City of Hornell, 615 F. Supp.
2d 102, 120 (W.D.N.Y. 2009) (emphasis in original).
The plaintiffs’ challenges to how the ordinance might
be applied include claims that the City may order
purely cosmetic changes to the property and that the
10 Nos. 09-1681, 09-2481
board of zoning appeals might not allow cross-examina-
tion. Such challenges are premature until and unless a
homeowner challenges the ordinance on the ground that
it has been applied to him in a way, not foreordained by
the text of the ordinance, that deprives him of property.
Unwilling to complain about the specifics of the applica-
tion of the order to their planned sales, the plaintiffs
insist that the ordinance be so detailed as to anticipate
and provide for every possible abuse or irregularity in
enforcement. To satisfy them the ordinance would have
to be a thousand pages long. The Constitution does not
require such detail.
One issue remains to be discussed. The order that we
reversed in MainStreet enjoined the enforcement of the
ordinance but the City thumbed its nose at the order
and continued enforcing the ordinance. The district
judge ordered the City to reimburse the Manns (the
plaintiffs in No. 09-1681) for expenses that they had
incurred as a result of its enforcement, and the parties
on appeal plausibly treat this as an order regarding a
contempt of court, though the judge never said the City
was in contempt of the injunction. After we ordered
dismissal of suit by the realtors—in the course of which
the contempt order had been entered—for lack of
standing, the district judge presiding in the Manns’ suit
vacated the order and the Manns challenge that ruling.
If a court has colorable jurisdiction of a case, though later
it is determined that actually it didn’t have jurisdiction,
an order of criminal contempt issued by the court before
the absence of jurisdiction is determined is valid. United
Nos. 09-1681, 09-2481 11
States v. Straub, 508 F.3d 1003, 1009-10 (11th Cir. 2007);
United States v. Kerley, 416 F.3d 176, 181 (2d Cir. 2005);
National Maritime Union v. Aquaslide ‘N’ Dive Corp., 737
F.2d 1395, 1399 (5th Cir. 1984); cf. Willy v. Coastal Corp.,
503 U.S. 131, 137 (1992). (A related proposition is that
contempt of an order later held beyond the court’s
power to issue may nevertheless be punished. E.g., United
States v. United Mine Workers of America, 330 U.S. 258,
293 (1947); Retired Chicago Police Ass’n v. City of Chicago,
76 F.3d 856, 870 (7th Cir. 1996); United States v. Mourad,
289 F.3d 174, 177-78 (1st Cir. 2002); 13D Charles A.
Wright et al., Federal Practice & Procedure § 3537, pp. 14-25
(3d ed. 2008).)
The rule doesn’t apply to an order of civil contempt,
however, United States Catholic Conference v. Abortion
Rights Mobilization, Inc., 487 U.S. 72, 76, 79-80 (1988);
Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir.
1978); 13D Wright et al., supra, § 3537, pp. 25-26, because
such an order doesn’t seek to punish and by doing
so vindicate the court’s authority to compel compliance
with its orders. Its objective is merely to protect a
litigant’s rights, in this case the Manns’ right to be com-
pensated for the costs they incurred as a result of the en-
forcement against them of an ordinance that the judge
thought unconstitutional. Now that it’s been deter-
mined that the ordinance is constitutional and therefore
that there has been no violation of the Manns’ rights,
they are not entitled to reimbursement for the costs the
ordinance imposed on them. Ferrell v. HUD, 186 F.3d
805, 814 (7th Cir. 1999); United States v. Straub, supra, 508
F.3d at 1009; United States v. Spectro Foods Corp., 544 F.2d
12 Nos. 09-1681, 09-2481
1175, 1182 (3d Cir. 1976); Salvage Process Corp. v. Acme Tank
Cleaning Process Corp., 86 F.2d 727, 727 (2d Cir. 1936) (per
curiam). “A conviction for criminal contempt may
indeed survive the reversal of the decree disobeyed; the
punishment is to vindicate the court’s authority which
has been equally flouted whether or not the command
was right. But the same cannot be true of civil contempts,
which are only remedial. It is true that the reversal of
the decree does not retroactively obliterate the past exis-
tence of the violation; yet on the other hand it does
more than destroy the future sanction of the decree. It
adjudges that it never should have passed; that the
right which it affected to create was no right at all. To
let the liability stand for past contumacy would be to
give the plaintiff a remedy not for a right but for a wrong,
which the law should not do.” Id.There are some other issues, but no need to discuss
them. The judgments are
A FFIRMED.
12-7-09