Walter Norman Kistler And Jean Ann Kistler Vs. City Of Perry, Iowa ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 44 / 04-1459
Filed August 11, 2006
WALTER NORMAN KISTLER and JEAN ANN KISTLER,
Appellants,
vs.
CITY OF PERRY, IOWA,
Appellee.
Appeal from the Iowa District Court for Dallas County, Darrell J.
Goodhue, Judge.
Owners appeal from district court order upholding the city’s seizure of
the plaintiffs’ motor vehicles under the city’s nuisance ordinances.
REVERSED AND REMANDED.
Stephen V. Nielsen of Skinner & Nielsen, P.L.C. West Des Moines, for
appellants.
Sarah M. Kouri and William L. Dawe III of Hopkins & Huebner, P.C.,
Des Moines, for appellee.
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LARSON, Justice.
The City of Perry, acting under authority of its nuisance-abatement
ordinances, seized twelve vehicles from the plaintiffs’ property. The
plaintiffs, Walter and Jean Kistler, challenged the seizure through an action
seeking temporary and permanent injunctions and damages. The district
court denied the injunction and granted the city’s partial motion for
summary judgment over the plaintiffs’ argument that the seizure orders
were unconstitutional. The plaintiffs appeal, and we reverse.
I. Facts and Prior Proceedings.
The plaintiffs own three properties in Perry. In the fall of 2002, the
city became concerned about a number of vehicles that it considered junk
on one of the Kistlers’ lots. On November 6, 2002, the city sent a notice to
the plaintiffs to remove the vehicles within fourteen days. The plaintiffs
declined, and as the city had threatened, it seized the vehicles. The
plaintiffs claimed foul because they were seized without an opportunity for
them to challenge the city’s actions or to establish whether they were, in
fact, junk under the city’s ordinance.
The November 6, 2002 notice to the Kistlers stated:
You are hereby notified to abate the nuisance existing
[on the plaintiffs’ property] within 14 days from receipt of this
notice.
The nuisance consists of junk and junk vehicles that
shall be abated by removal from the above referenced
properties.
In the event that you fail to abate, or cause to be abated,
the above referenced nuisance within the time period
designated herein, the City of Perry will take such steps as are
necessary to abate, or cause to be abated, said nuisances and
the cost of the abatement action will be assessed against you
and/or the above-referenced properties, as provided by law.
The notice did not inform the Kistlers of any opportunity to have a
hearing on the matter, and the city concedes that neither the notice to abate
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nor the ordinance provides for any such hearing. The issue presented on
appeal is whether the city’s nuisance-abatement provision, allowing seizure
of the vehicles under these circumstances, denied the plaintiffs due process.
II. Principles of Review.
We review a district court’s grant of a summary judgment for
correction of errors at law. Campbell v. Delbridge, 670 N.W.2d 108, 110
(Iowa 2003). Summary judgment is appropriate only when there are no
genuine issues of material fact, and the moving party is entitled to judgment
as a matter of law. Id. We, of course, review constitutional issues de novo.
Dressler v. Iowa Dep’t of Transp., 542 N.W.2d 563, 565 (Iowa 1996).
III. The City Ordinances.
The Kistlers argue that section 50.05 of the city’s ordinance is
unconstitutional because it places sole discretion over nuisance abatement
in an administrative officer, without providing for a due-process hearing.
Under that ordinance,
[w]henever the Compliance Officer finds that a nuisance exists,
such officer has the authority to determine on a case-by-case
basis whether to utilize the nuisance abatement procedure or
to issue a citation to the person for violation of this Code of
Ordinances.
The plaintiffs contend that the city’s compliance officer arbitrarily
determined their vehicles to be a nuisance. The city responds that this
determination was made on the basis of a city ordinance that deemed
certain conditions to be nuisances. Section 50.02 lists certain conditions,
not including vehicles, that are deemed to be nuisances. However, in
section 50.03, the ordinance provides:
The following chapters of this Code of Ordinances contain
regulations prohibiting or restricting other conditions which
are deemed to be nuisances:
1. Junk and Junk Vehicles (See Chapter 51).
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Chapter 51, in turn, provides a broad definition of junk vehicles. In part, it
provides that “Junk vehicle” means “any vehicle legally placed in storage
with the County Treasurer or unlicensed and which has any of the following
characteristics[.]” Then follows a list of conditions that will cause a vehicle
to be considered junk. If the vehicle has broken glass; a broken, loose, or
missing part; houses nuisance animals; contains any flammable fuel; or if it
is “inoperable” or in a “defective or obsolete condition,” it fits the definition.
Section 51.02 then provides:
JUNK AND JUNK VEHICLES PROHIBITED. It is unlawful for
any person to store, accumulate, or allow to remain on any
private property within the corporate limits of the City any junk
or junk vehicle.
Legislatures have broad authority to define nuisances and to provide
methods for their abatement. See 58 Am. Jur. 2d Nuisances § 48, at 605
(2002). This is true as to city governments in Iowa. See Iowa Code
§ 364.12(3) (“A city may: a. Require the abatement of a nuisance, public or
private, in any reasonable manner.”). The operative word in this statute is
“reasonable.” The plaintiffs claim that the city’s ordinance is so
unreasonable it violates due process, and there is considerable support for
that claim in the general nuisance law.
Generally, before the abatement of a nuisance, the
property owner responsible for the nuisance is entitled to due
process of law, that is, formal notice and hearing to determine
whether the property is in fact a nuisance in most instances. If
possible, the owner of property should, before its destruction,
be given a hearing upon the question of whether the property is
in fact a menace to the community. Requirements of due
process are satisfied by a statute authorizing the destruction of
property as a public nuisance where it provides for an
investigation and ascertainment of the facts by a public officer,
notice to the owner, and an appeal to the court from the
decision.
58 Am. Jur. 2d § 406, at 831 (footnotes omitted). “Things which are by
common or statutory law declared to be nuisances per se, or which are by
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their very nature palpably and indisputably such, may be abated or
destroyed by public authorities without notice or hearing.” Id.
In this case, the city does not contend that these vehicles were
“palpably and indisputably” nuisances. However, the city claims the
vehicles were clearly made nuisances through the enactment of its
ordinance that defined junk vehicles. See id. at 831-32 (“Where a statute so
specifically defines what constitutes a nuisance as to leave no room for
latitude on the question, officials are authorized and protected in abating
such described nuisances and no notice or hearing is required.”).
However, the city’s ordinance defining junk vehicles is so broad that it
gives little meaningful notice as to what constitutes junk. In Perry, for
example, an unlicensed vehicle with a broken or cracked windshield or
other glass, and a broken, loose, or missing part, or containing “gasoline or
any other flammable fluid” (which all vehicles do), could be seized by the
city’s enforcement officer. In contrast to this broad definition of junk
vehicles, a state statute provides this objective, understandable description
of a similar category of vehicles:
“Wrecked or salvage vehicle” means a damaged vehicle
for which the cost of repair exceeds fifty percent of the fair
market value of the vehicle before it became damaged.
Iowa Code § 321H.2(10).
In Walker v. Johnson County, 209 N.W.2d 137 (Iowa 1973), junk cars
were also at the center of controversy. In that case, the Johnson County
Health Board was empowered “to investigate, on complaint or on its own
initiative, any health nuisance in the county and order its abatement.”
However, the ordinance made no provision for notice or hearing to
determine whether a health nuisance in fact existed. Walker, 209 N.W.2d
at 138. We said:
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Under these circumstances, where no emergency exists
and the determination of a nuisance lies only in the discretion
of an administrative officer, the scales tip against unrestricted
governmental action under the guise of police power and in
favor of the due process notice and hearing requirements.
Id. at 140.
In this case, the city argues that Walker must be distinguished
because, unlike the present case, the owners of the vehicles in Walker
lacked advance notice as to what constituted a hazard. We noted that “the
unlicensed cars, however offending aesthetically, are nowhere defined as a
health nuisance per se.” Id. We disagree with the city’s rejection of the
Walker rationale. Here, the ordinance describing junk vehicles is so broad
that it fails to give any meaningful notice as to what may be seized or what
limits are imposed on the powers of the enforcement officer. Moreover, as in
Walker there is no evidence that the vehicles were “palpably and
indisputably” nuisances or that “there is any evidence of an emergency
situation.” Id. at 139-40.
In an analogous case involving two states’ replevin statutes permitting
seizures without prior notice and opportunity to be heard, the Supreme
Court observed:
For more than a century the central meaning of
procedural due process has been clear: “Parties whose rights
are to be affected are entitled to be heard; and in order that
they may enjoy that right they must first be notified.” Baldwin
v. Hale, 1 Wall. 223, 233, 17 L. Ed. 531. . . . It is equally
fundamental that the right to notice and an opportunity to be
heard “must be granted at a meaningful time and in a
meaningful manner.”
Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d 556,
569-70 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct.
1187, 1191, 14 L. Ed. 2d 62, 66 (1965)).
Moreover, as the Court noted, a postseizure remedy is usually
inadequate:
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If the right to notice and a hearing is to serve its full
purpose, then, it is clear that it must be granted at a time
when the deprivation can still be prevented. At a later hearing,
an individual’s possessions can be returned to him if they were
unfairly or mistakenly taken in the first place. Damages may
even be awarded to him for the wrongful deprivation. But no
later hearing and no damage award can undo the fact that the
arbitrary taking that was subject to the right of procedural due
process has already occurred. “This Court has not . . .
embraced the general proposition that a wrong may be done if
it can be undone.”
Fuentes, 407 U.S. at 81-82, 92 S. Ct. at 1994-95, 32 L. Ed. 2d at 570
(quoting Stanley v. Illinois, 405 U.S. 645, 647, 92 S. Ct. 1208, 1210, 31
L. Ed. 2d 551, 556 (1972)).
We hold that the ordinance under which these vehicles were seized
denied the plaintiffs their procedural due process rights in violation of the
Fourteenth Amendment to the United States Constitution and article I,
section 9 of the Iowa Constitution. The plaintiffs also ask that we declare
the ordinance unconstitutional on its face. This is also an issue we
addressed in Walker:
There remains the question of the scope of this decision.
Enactments may be constitutional in operation with respect to
some persons and states of fact and unconstitutional as to
others. An enactment may be limited to its valid applications.
Under other circumstances involving a palpable health
nuisance per se, or in a situation of clear and compelling
emergency, the board’s ordinance might arguably function
within the due process constitutional parameters where
validity of state police power enactments are litigated. We do
not decide that issue. We only decide the ordinance, in the
case of Walker, operates unconstitutionally in violating due
process . . . .
209 N.W.2d at 140 (citations omitted).
In this case, the ordinance does not require the enforcement officer to
seize vehicles without a hearing; it only authorizes the officer “to determine
on a case-by-case basis whether to utilize the nuisance abatement
procedure or to issue a citation . . . .” Under this ordinance, the
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enforcement officer could follow either alternative by providing a notice and
hearing and thereby avoiding constitutional problems. We do not believe
the ordinance is invalid on its face.
According to the record, residents of Perry have been upset about the
Kistlers’ operation for years, and that is understandable. But, regardless of
how aesthetically offending the vehicles might be, they were not shown to be
so clearly and palpably nuisances that they could be legally seized without
notice or hearing. We therefore reverse the judgment of the district court
and remand for further proceedings under the plaintiffs’ petition for
injunctions and damages.
REVERSED AND REMANDED.
All justices concur except Wiggins, J., who takes no part.