Robert Kornblum v. St. Louis County, Missouri John Doe, an Unknown Person and John Doe Ii, an Unknown Person , 72 F.3d 661 ( 1995 )

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The issue in this case is whether St. Louis County satisfied the notice requirements of the Fourteenth Amendment before it razed Mr. Kornblum’s house. We conclude that the district court erred in granting summary judgment for the County, and therefore reverse and remand for further proceedings. (We state hereafter such facts as the present record evidence would justify a jury in finding. for Mr. Kornblum.)

I.

Prior to Mr. Kornblum’s purchase of the relevant house, and without his knowledge, the County had initiated proceedings to demolish the structure because it was in an advanced state of disrepair. In March, 1987, a County building inspector visited the premises and posted notices that he had declared the structure to be a public nuisance. Such a notice warns that if the building is not repaired or demolished, the County would do it and send the owner the bill. Saint Louis, County Ordinance No. 11,718, § 125.4.1 (1984). The posting was repeated three months later when the inspector learned that the original notices were no longer posted. A title company performed a title search and reported to the County that the property was owned by Orville and Daisy Glendinning, and that Orville Glendinning was deceased. In fact, Daisy Glendinning had also died, a few months before the County had initially inspected the property.

In July, 1987, the County mailed a notice that the property had been declared a nuisance to “Daisy Glendinning c/o Pat Andrew” at Mr. Andrew’s address, because his name appeared on the County tax rolls as the recipient of the tax bills for the property in question. A similar notice was published in a local newspaper. A Saint Louis County ordinance provides, however, that such notices must be “filed and recorded” in the office of the St. Louis County Recorder of Deeds as well. Saint Louis County Ordinance No. 11,-718, § 125.4.3. No such notice was filed or recorded in this case.

The County subsequently published in the same local newspaper notice of a hearing on the question of whether the house should be demolished, and mailed notice of that hearing to “Orville Glendinning c/o Pát Andrew.” In October, 1987, the County held the hearing, but no one purporting to be property owners, or their representatives, appeared. The hearing officer concluded that the house was an unfit structure and issued an order that it be demolished. The order provided that “all affected parties” would be notified that they had thirty days to remove the building themselves before the County would take bids for .the demolition. We have been unable to determine from the record how, or even whether, such notice was given.

More than four months after the order of demolition was issued, Mr. Kornblum purchased the property from the heirs of Daisy Glendinning. Before closing, Mr. Kornblum conducted a title search that revealed that the heirs of Daisy Glendinning were the owners of the property. The title search revealed no reference to any nuisance declarations or demolition orders of any kind, and could not have, since none had been filed or recorded. Mr. Kornblum inspected the premises on the date of closing, and found no notice posted on the premises.

Mr. Kornblum began renovation of the premises. Two months after he had purchased the property and six months after the hearing he learned from his landscapers, who had already embarked on improvements to the property, that County employees had entered the premises and demolished the house. Since the demolition, Mr. Kornblum has attempted to sell the premises but to no avail.

Mr. Kornblum filed the present action under 42 U.S.C. § 1983 and Missouri law, alleging in part that the County deprived him of his property without due process of law. The district court granted summary judgment for the County, and dismissed Mr. Kornblum’s pendent state claims for lack of jurisdiction. Kornblum, v. St. Louis County, 835 F.Supp. 1127, 1129 (E.D.Mo.1993). Mr. Kornblum appealed. A panel of our court, one judge dissenting, affirmed, finding that (a) assuming Mr. Kornblum had standing to assert the lack-of notice to the Glendinnings, the County had given constitutionally sufficient notice to the heirs, and (b) Mr. Korn-blum was not himself entitled to notice because his identity was not ascertainable at the time the County gave notice to Andrew. Kornblum v. St Louis County, 48 F.3d 1031 (8th Cir.1995). We voted to consider this case en banc, and now reverse and remand for further proceedings.

II.

The Due Process Clause of the Fourteenth Amendment requires that a State, prior to taking an action affecting an interest in property, provide notice that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of that action. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180 (1982); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). It is true that Mullane deals with a complaint about not being afforded an opportunity to be heard, and here plaintiff complains of a failure to give notice that certain property had been declared a nuisance by a County building inspector. Mr. Kornblum is thus not complaining about not being afforded a hearing. In fact, by hypothesis, notice of the hearing that was held later would have been useless to Mr. Kornblum, since he did not purchase the property until well after that hearing was held. But we do not find these differences constitutionally significant. The declaration itself was the beginning of an adjudicatory process that was likely to end (and did end) in the destruction of a building, and it is on that process as a whole that the Constitution makes demands of fairness. -

Given that the total destruction of the house in question was contemplated, notice to the owners, namely, the Glendinning heirs, by mail or personal service, was constitutionally required if their names and addresses were reasonably ascertainable. Mennonite Bd., 462 U.S. at 800, 103 S.Ct. at 2712. We also believe that some form of notice to future purchasers such as Mr. Kornblum was called for under the circumstances of this case. The Supreme Court has recognized that persons “whose interests are either conjectural or future” are entitled to some consideration when notice is provided. See Mullane, 339 U.S. at 317, 70 S.Ct. at 658-59. While the Court was evidently speaking there of present owners of vested and contingent future interests, we see no relevant constitutional differences between such persons and prospective purchasers in an active land market. The identity of the present owners of contingent future interests is frequently as unascertainable as the identity of subsequent buyers. And both classes of persons are likely to suffer loss in equal measure from a lack of notice.

It may or may not be the case that due process requires governmental entities to employ means like those provided by the ordinance here to give notice to future purchasers of proposed state' actions that will affect their interests. Perhaps nothing else could provide notice reasonably calculated to apprise those purchasers of such actions. We need not reach that question in this ease, however. We hold only that the means resorted to here to give notice to prospective purchasers did not, in the circumstances of this ease, satisfy the requirements of due process. Mailing notice to a deceased owner is manifestly defective, no matter whose due process rights are being considered. Posting is an especially ephemeral means of giving notice, even to present possessory owners, and will very frequently be ineffective in providing a warning to future purchasers, because of the real possibility that the notices will have disappeared before prospective buyers inspect the premises.

We believe that the newspaper notices suffered from a similar constitutional infirmity. We are mindful that the Supreme Court has indicated that publication is sufficient in certain circumstances to give notice to holders of future interests whose identity was difficult to determine. Mullane, 339 U.S. at 317, 70 S.Ct. at 658-59. But, in the first place, future purchasers are frequently in circumstances entirely different from those in which the owners of future interests find themselves. Owners of future interests, even contingent owners, usually know, or are reasonably charged with knowing, of the existence of their interests. Future purchasers, on the other hand, are not put in a position of watchfulness with respect to specific property until they form an interest in buying it. It is not fair or reasonable to charge them with notice of a newspaper publication that occurred before their interest in buying was formed, nor can knowledge of such publication be expected to reach them afterwards, given their entirely reasonable habit of relying on record evidence as security for their purchases.

More importantly, contrary to what the dissent maintains, we believe that what due process requires by way of notice does indeed depend upon what means of providing it lie within easy reach. Notice that is constitutionally sufficient is “such as one desirous of actually informing the [interested parties] might reasonably adopt to accomplish it.” Mullane, 339 U.S. at 315, 70 S.Ct. at 657. In deciding what form of notice was reasonably adopted in the circumstances of Múlleme, the Court specifically considered “the practical difficulties and costs that would be attendant on” other means of giving notice. Id. at 317, 70 S.Ct. at 658-59. Compliance with the recording ordinance in force here was simple, straightforward, and virtually costless to the County, all of which tends to make the County’s failure to comply with it unreasonable within the meaning of Múl-leme and thus a violation of due process. It can come as no surprise that questions of due care and due process turn on similar kinds of considerations. The measure of each is largely what one is bound reasonably to do under relevant circumstances. Had the County simply followed its own ordinance, an ordinance the office of which is mainly to give notice to prospective purchasers, Mr. Kornblum would have had constructive notice of the impending demolition before he purchased the property. He could then have taken whatever defensive measures seemed appropriate, including refusing to buy the house, or persuading the County to rescind its order or delay the execution of it.

We believe, moreover, that the delay in demolishing the property contributed significantly to the unreasonableness of the notice in this case. A considerable time elapsed between the time that the County condemned the building and the time that it demolished it, and this cannot, in the nature of things, have been unusual. The identity of the people who will want notice will frequently change over time because of this kind of delay, and the County is charged with knowing this. (Here, the number of interested people actually decreased, because the heirs of Daisy Glendinning had no interest in the property by the time of demolition, but Mr. Kornblum, unfortunately for him, entered the picture.) Because the County delayed a long time before it demolished the building, it created a foreseeable and appreciable risk that its action would affect a set of interested parties different from those whose interests were affected when the house was declared a nuisance. For this reason, we disagree with the contention that whether a party is entitled to notice is fixed at the time that condemnation procedures commence, especially when the government delays its demolition for a substantial length of time. But see Nitchie Barrett Realty Corp. v. Biderman, 704 F.Supp. 369, 372 (S.D.N.Y.1988). Recording, under these circumstances, would have served to alert those who, like Mr. Kornblum, purchase property freighted with delayed governmental action that is otherwise latent so far as the record evidence is concerned.

In short, while due process may not require that governmental entities create and employ recording devices like the one available to St. Louis County in this case, due process does require governmental entities to .employ such a device if one is available, if they do not employ some other constitutional means of providing notice to prospective purchasers. We therefore conclude that the record on summary judgment forecloses a conclusion that the County acted to provide notice that was reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.

III.

For the foregoing reasons, we réverse the judgment of the district court and remand for further proceedings consistent with this opinion.