Ming Yang v. City of Wyoming, Mich.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0146p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MING KUO YANG; JULIE YANG, ┐
Plaintiffs-Appellants, │
│
│ No. 14-1846
v. │
>
│
CITY OF WYOMING, MICHIGAN, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:13-cv-00616—Robert Holmes Bell, District Judge.
Argued: March 4, 2015
Decided and Filed: July 13, 2015
Before: CLAY, GILMAN, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Gaëtan E. Gerville-Réache, WARNER, NORCROSS & JUDD LLP, Grand Rapids,
Michigan, for Appellants. Jack R. Sluiter, SLUITER, VAN GESSEL & CARLSON, PC,
Wyoming, Michigan, for Appellee. ON BRIEF: Gaëtan E. Gerville-Réache, WARNER,
NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellants. Jack R. Sluiter,
SLUITER, VAN GESSEL & CARLSON, PC, Wyoming, Michigan, for Appellee.
SUTTON, J., delivered the opinion of the court in which GILMAN, J., joined. CLAY, J.
(pp. 10–18), delivered a separate dissenting opinion.
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OPINION
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SUTTON, Circuit Judge. For one reason or another, Ming Kuo and Julie Yang did not
keep up their commercial property in Wyoming, Michigan. Neglect led to disrepair, which led
1
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 2
by all appearances to abandonment and the safety risks that go with it. The city tried to contact
the couple about the necessary fixes, but to no avail. After the last of the notices, the city leveled
the building. The Yangs noticed that development and filed this § 1983 action in response,
alleging that the city failed to provide them with sufficient notice of the demolition. The district
court granted summary judgment to the city, holding that the city provided all of the notice that
was reasonably due. We affirm.
I.
The Yangs purchased the building in 1989, and over the years leased it to an assortment
of restaurants. In late 2010, they listed the property for sale, and in February 2011 the last
restaurant to lease the property closed.
The Yangs never managed to sell the building or find another tenant after February 2011.
From then on, they neglected the property, though they continued to pay their property taxes on
it. That lack of attention and brisk Michigan winters took their toll. So did the work of local
bandits. The building “was vandalized,” a city inspector said. R. 50-11 at 4. “Electrical wires
were pulled out. The [water] meter had been stolen. . . . [T]he inspectors said ceiling fixtures
were missing. Copper plumbing lines were cut out. All the kitchen equipment was gone.” Id.
“The roof was failing. The front columns that supported the canopy over the entryway were
starting to lean out. . . . You could see in the windows that the ceiling pads were coming down,
looked like due to water coming through the roof. . . . Plant[e]r boxes around the building were
failing.” R. 50-12 at 3. “The parking lot was . . . full of potholes” and littered with abandoned
vehicles. Id.
In October 2011, city officials posted an abandonment notice on the “dilapidated”
building and mailed a copy to the owner listed in its files. R. 50-6 at 3. The mailed notice went
to the address of the abandoned building and mistakenly listed the previous owner (Joseph
Gordon), not the Yangs, as the recipient. The city took no further action at that time other than
to reinspect the property each month and ensure the abandonment notice remained on the
building.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 3
Nine months later (July 2012), the city condemned the lot by posting a “repair/demolish”
notice on the building. R. 48-13 at 3. At the same time, the city also sent out two notices
through a signature-required certified mailing: a “Notice and Order to Repair or Demolish,”
which said that the structure violates state or local building codes and warned that continued
noncompliance could lead to “demolition,” R. 48-9 at 2–3, and a “Notice of Posting,” which
detailed the property’s shortcomings, R. 48-8 at 2. Once again, that mail went to the abandoned
property’s address and listed Joseph Gordon as the recipient.
Two months later, the post office returned the certified letter as unclaimed, “unable to
forward,” and addressed to a “vacant” building. R. 48-12 at 2. The city “did a title search,”
which “came up with a new owner of record”: the Yangs. R. 48-14 at 4. Armed with the
correct owner and the correct residential address of the owner, the city sent the Notice and Order
to Repair or Demolish and the Notice of Posting by certified mail in September 2012 to the
Yangs’ home in nearby Grand Rapids.
By mid-October, the city had not heard from the Yangs. It scheduled a hearing about
demolishing the property for November 1 and sent the Yangs a hearing notice by regular mail.
The city also mailed a copy of the hearing notice to the Yangs’ realtor.
Soon after these actions, the post office returned as “unclaimed” the certified mailing sent
to the Yangs’ home. The city did not resend the information contained in that mailing. That
information, however, was already contained in material part in the regular, non-certified mailing
that the city sent to the Yangs’ home and that never came back to the city.
The November 1 hearing arrived, but the Yangs did not. The board approved the
demolition, because it found “the property ha[d] not been maintained,” “repairs would be
expensive,” and “[a] vacant lot would still be of value to the owner.” R. 48-21 at 4. Afterward,
the city sent another notice to the Yangs’ home address by regular mail. This one informed the
couple of the planned demolition and their right to appeal the board’s order to state court. That
letter too was not returned. Still no word came from the Yangs. In January 2013, the city razed
the Yangs’ property and mailed them a $22,500 bill for the work.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 4
That got their attention. Ming Kuo called the city’s chief building inspector to see what
had happened to the property. According to the city, Ming Kuo said, “I remember getting the
mail that said something about fixing up the building but I ignored it.” R. 51-3 at 4. According
to the Yangs, they “did not receive any notices or letters” telling them that “the [c]ity might
demolish the[ir] building.” R. 48-2 at 4.
Rather than pay the demolition bill, the Yangs filed this § 1983 action in federal district
court. They claim that the city violated their procedural due process rights by destroying their
property without adequate notice. The district court granted summary judgment to the city. See
Yang v. City of Wyoming, 31 F. Supp. 3d 925, 931 (W.D. Mich. 2014). The Yangs appeal.
II.
Before a state or local government may deprive an individual of a property interest, the
Due Process Clause of the Fourteenth Amendment requires it to provide “notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950). A city like Wyoming must supply notice through means
that “one desirous of actually informing the absentee might reasonably adopt.” Id. at 315. “The
Constitution . . . judges the adequacy of notice from the perspective of the sender, not the
recipient,” Lampe v. Kash, 735 F.3d 942, 944 (6th Cir. 2013), which means that the individual
recipient’s lack of due diligence will not negate otherwise reasonable efforts at notice, see
Karkoukli’s, Inc. v. Dohany, 409 F.3d 279, 285–86 (6th Cir. 2005).
Notice mailed to a person’s home address generally satisfies due process. See Mennonite
Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983). But what happens if local officials send
notice through signature-required certified mail and the letter is returned unclaimed, as happened
here? The government’s response, as with any attempt at providing notice, must be “reasonable”
under the “particular circumstances.” Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478,
484 (1988). When unclaimed certified mail represents the government’s first attempt at notice,
for example, it must take “additional reasonable steps” to notify the interested party. See Jones
v. Flowers, 547 U.S. 220, 234 (2006). No set-in-stone formula solves the problem of unclaimed
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 5
certified mail, but posting notice or sending it by regular mail generally will do the trick. See id.
at 234–35.
In this instance, the city made four other attempts to reach the Yangs on top of the
certified mail it sent to the couple’s home address. Taken together, these efforts were
“reasonably calculated” to give notice to the Yangs. See Jones, 547 U.S. at 229.
1. The posted notices. The city began posting abandonment notices on the Yangs’
building in October 2011 and kept them there through January 2013, when it razed the building.
Posting notice is “a singularly appropriate and effective way of ensuring that a person is actually
apprised of proceedings against him.” Jones, 547 U.S. at 236 (ellipses omitted). It is also “a
significant act. The local officials must get out of the office, find the property, and put a notice
up for all to see.” Karkoukli’s, 409 F.3d at 286. The record does not say what the initial notice
said, but by July 2012 at the latest—four months before the November hearing—the city began
posting “repair/demolish” notices on the property. R. 48-13 at 3. Although the record does not
contain copies of these notices (the building was destroyed after all), these city notices generally
say that a “structure[] was found to be a Dangerous Building within the context of the [Wyoming
City] Code” and that failure to return the building to “complete compliance” may result in
“demolition.” R. 48-15 at 2–3. But whatever the specific contents of the posted
“repair/demolish” notices were, the city had ample reason to think that the Yangs, like any
reasonable property owners (and especially reasonable property owners who live nearby), would
find the notices relating to “repair[s]” and “demoli[tion]” on their property. Id. “[I]n most cases,
the secure posting of a notice on the property . . . offer[s] that property owner sufficient warning
of the pendency of proceedings possibly affecting his interests.” Greene v. Lindsey, 456 U.S.
444, 451 (1982).
2. The hearing notice. The city also sent the Yangs a letter about the demolition hearing
by regular mail. That letter gave the Yangs a good deal of information. It came from the city’s
“Building Inspections Department” and listed the property’s address in the subject line. R. 48-20
at 2. The letter thus alerted the Yangs to the inspection-related problems with the property. And
it alerted them that the city would conduct a hearing about an alarm-bells topic: a “Notice to
Repair or Demolish the structure(s).” Id. The notice also mentioned chapter 10 of the Wyoming
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 6
City Code, which explains the reasons why the city would deem a building “dangerous” and thus
subject to “demolition.” Wyoming City Code §§ 110.1–.2. The letterhead contained “an
address, phone number, and website with which to obtain more information” about the hearing
too. See Gooch v. Life Investors Ins. Co., 672 F.3d 402, 424 (6th Cir. 2012) (quotation omitted);
see also Herrada v. City of Detroit, 275 F.3d 553, 559 (6th Cir. 2001).
3. The realtor’s hearing notice. The city also forwarded the hearing notice to the Yangs’
realtor. As the district court noted, sending the notice to the realtor was not a “mere gesture.”
Yang, 31 F. Supp. 3d at 930. The return of the certified mail meant one of two things: Either the
Yangs refused to accept mail that would put them on notice of the consequences of neglecting
their property, or they no longer lived at the Grand Rapids address. Rather than assume the
former (which might have been understandable under the circumstances), the city acted based on
the latter. Contacting the realtors of a property owner is a reasonable way to contact the owner—
indeed an eminently intelligent and good faith way—as the realtor would be a likely source of
the owner’s contact information.
4. The post-hearing notice. Even after all of this, the city did not demolish the Yangs’
building as soon as the hearing ended. It sent the Yangs another notice by regular mail.
It informed the couple that the board had “affirmed the City’s Notice and Order to Demolish”
and that, if no appeal to county court was filed within thirty days, the city’s contractors would
“remove the structure” from the property “at their earliest convenience.” R. 48-22 at 2. Post-
hearing notice alone may satisfy due process so long as the interested party still has another
meaningful opportunity for a hearing. The subsequent hearing “cure[s]” any lack of notice about
the initial hearing. See McKinney v. Pate, 20 F.3d 1550, 1557, 1562–64 (11th Cir. 1994) (en
banc); see also In re Tidwell, 295 F.3d 331, 334 (2d Cir. 2002). What matters is that the Yangs
have an opportunity for a fair pre-demolition hearing, and the state-court appeals process would
have provided one. After sending the post-hearing notice to their accurate residential address,
the city waited to hear from the Yangs for two more months before demolishing the property.
All of these forms of notice considered, the city satisfied due process before tearing down a
building that even the Yangs do not deny was dangerous and dilapidated.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 7
The Yangs deploy a divide-and-conquer approach in attacking this conclusion. Posted
notice by itself does not suffice, they say; the hearing notice taken alone did not contain the
city’s reasons for demolishing the property; and the post-hearing notice as the sole form of notice
would have come too late. But that is not the way this works. The question is whether the city’s
many notice efforts amounted in the aggregate to a reasonable effort to apprise the Yangs of
what was going on. Lest we forget, the city mailed the Yangs all of the information they needed
to their home address by certified mail. That step by and large satisfied the city’s initial due
process responsibilities. See Tulsa, 485 U.S. at 490; Schluga v. City of Milwaukee, 101 F.3d 60,
62 (7th Cir. 1996). After the certified mailing came back unclaimed, the city needed to respond
reasonably to the failure. See Jones, 547 U.S. at 229. But neither Jones nor any other case holds
that the city acts unreasonably simply because its subsequent responses would not—each by
themselves—independently satisfy due process, as the Yangs seem to think.
Nor would that make sense. Reasonableness inquiries occur case by case,
circumstantially, and above all with attention to all that the government has done. So considered,
the city’s responses to the returned certified mail were reasonable. One response was to rely on
the hearing notice sent by regular mail. Another was to keep “repair/demolish” notices posted on
the property. (Who by the way does not look at their property when it is located nearby for more
than fourteen months?) And another was to give post-hearing notice of their appeal rights and of
the impending demolition if they do nothing. All that was missing is actual notice—expressly
acknowledged by the Yangs. But that is not the test, as all agree. At some point, the question
must turn from how often—and in how many forms—notice is due to how many times the
property owner neglects to respond with the diligence that is due. Either way, the city satisfied
its reasonableness requirements.
Nor does it make a difference that the regular mail notice—mailed after the certified mail
was sent—did not give the reasons for a potential demolition. The reason turns again on the
nature of the inquiry—an aggregate consideration of what was done. To see why, imagine that
the city, after learning that the Yangs had not claimed the certified mail, sent them a letter by
regular mail saying: “We sent you a notice by certified mail stating that we plan to demolish
your property, but it came back unclaimed. Please call us at (phone number) so that we can
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 8
provide you with the necessary information.” Would we say the city’s effort was unreasonable
because the follow-up notice did not itself include the reasons for the demolition? Of course not.
Recall that the city had already sent the reasons for the demolition by certified mail. Yes, the
Yangs did not get them, but the point turns on reasonable efforts to provide notice, not notice
actually received. Notice to call the city would make up for the failed certified mail because it
would give any reasonable person a means to learn about the demolition. “Whatever is notice
enough to excite attention and put the party on his guard and call for inquiry, is notice of
everything to which such inquiry may have led.” Espinosa v. United Student Aid Funds, Inc.,
553 F.3d 1193, 1203 (9th Cir. 2008), aff’d, 559 U.S. 260 (2010). That in essence is just what
happened here. Here is what the regular-mail notice said: “Re: 2675 28th St. S.W. [the address
of the Yangs’ building] Please take notice that a hearing shall be held” at “a meeting of the
Wyoming Housing Board of Appeals . . . . regarding the City’s Notice to Repair or Demolish the
structure(s), in conformity to Chapter 10 of the Code of the City of Wyoming.” R. 48-20 at 2.
The dissent claims that the Yangs’ “behavior has no bearing whatsoever” on whether the
City’s notice was adequate to satisfy due process. Ante at 16. That is true in one sense: We will
not excuse unreasonable notice on the ground that a more responsible property owner might have
found out about the planned demolition on his own. But it is not true in another sense: That the
Yangs chose (apparently) not to visit their property for fourteen months or chose (apparently) not
to open their mail does not diminish the city’s reasonable efforts at providing notice. “The law
expects at least some diligence from the property owner,” Karkoukli’s, 409 F.3d at 286, and that
reality necessarily affects how courts gauge reasonable efforts. We know of no case—and
neither the Yangs nor the dissent have cited one—in which a city made so many attempts to
provide notice and yet was still found to violate due process.
The Yangs add that we should ignore the notice posted on the abandoned building and
pretend it never happened—because that piece of paper (presumably destroyed with the building)
never made it into the record. But the city’s building-code enforcement log states that a city
official “posted” a “repair/demolish” order on the building in July 2012. R. 48-13 at 3. And the
Yangs have no contrary evidence. On this record, the Yangs cannot deny that such a notice was
posted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 9
The Yangs also make much of the city’s initial notice attempts, which were sent to the
address of the building and identified the recipient as the prior owner. But defective notices like
these are irrelevant to the inquiry, so long as the city’s later efforts were “reasonably calculated”
to provide notice—which they were.
For these reasons, we affirm.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 10
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DISSENT
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CLAY, Circuit Judge, dissenting. Today the majority relies on assertions that are
unsupported by the record, misconstrues the question presented, and ignores circuit precedent, all
in effort to justify diluting the requirements of procedural due process so that they can find
against plaintiffs whom they do not consider particularly sympathetic. Because the uncontested
facts demonstrate that the City’s efforts to notify the Yangs do not pass constitutional muster, I
respectfully dissent.
I.
This case is before us after both parties moved for summary judgment and the district
court ruled in the City’s favor. When faced with cross-motions for summary judgment, “the
court must evaluate each party’s motion on its own merits, taking care in each instance to draw
all reasonable inferences against the party whose motion is under consideration.” B.F. Goodrich
Co. v. U.S. Filer Corp., 245 F.3d 587, 592 (6th Cir. 2001) (internal quotation marks omitted).
A more accurate and complete statement of the factual background of this case is
necessary in order to highlight the unsubstantiated facts relied upon by the majority to justify the
demolition of the Yangs’ property.
Ming Kuo and Julie Yang have owned the commercial space located at 2675 28th St.
S.W., Wyoming, Michigan 49519 (the “property”) for more than twenty-five years. The
building on the property housed a succession of restaurants until the most recent one went out of
business in February 2011. By that time, the Yangs had already listed the property for sale with
a realtor.
A city inspector visited the property in October 2011. The inspector documented a
number of ordinance violations, characterized the property as abandoned, and posted an
abandoned structure notice somewhere on the property. (Presumably the property was in fine
shape eight months prior when it was licensed as a restaurant serving the City’s residents and
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 11
visitors.) Within days of the inspection, the City erroneously mailed an abandoned structure
notice to a prior owner, Joseph Gordon, at the property’s address.
Thereafter, the City dispatched inspectors to examine the property on a monthly basis.
During the July 2012 inspection, a municipal employee determined that the structure on the
property met the definition of a “Dangerous Building” under the City Code, and posted a
“repair/demolish” notice somewhere on the property.1 R. 48-13 at 3. There is no indication in
the record as to where on the grounds the notice was posted, nor is there anything in the record
detailing the substance of the notice. The majority claims to know what these types of posted
notices “generally say,” but the record entry cited is an entirely separate mailed notice that the
Yangs never received. Op. at 5 (citing R. 48-15 at 2–3).
In September 2012, the City realized that the repair/demolish and posting notices had
been erroneously mailed to the prior owner, so it resent both notices by certified mail to the
Yangs’ residence in Grand Rapids, Michigan. Among other things, the notices advised that an
inspection was made and, as a result of the inspection, the structure on the property was
determined to be a “Dangerous Building” as defined by the City Code. R. 48-15 at 2. The
notices also identified the specific provisions of the Code that the structure violated, indicated
that the violations had to be corrected or the structure demolished by October 12, 2012,
explained that the order was appealable, advised that the Yangs should inform the City whether
they intended to comply with the order, and identified the consequences of a failure to comply.
However, the Yangs never received this correspondence; the post office subsequently returned
the September 2012 notices to the City as “return to sender” “unclaimed” “unable to forward.”
R. 48-19 at 2.
In October 2012, the city mailed notice of a November 1, 2012 hearing before the City
Board of Housing Appeals regarding the property. The letter was sent to the Yangs at their home
address by regular mail. The post office did not return this October 2012 letter.
1
Later that same month, the City sent a repair/demolish notice and a posting notice to Joseph Gordon at the
property address by certified mail. The United States Postal Service returned both notices as “unable to forward”
and “vacant.” R. 48-12 at 2.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 12
At the hearing on November 1, 2012, James DeLange, the Chief Building Inspector,
informed the Board of Housing Appeals that the September 2012 certified letter sent to the
Yangs had not been claimed. He explained that the building had been vacant for more than a
year, had structural damage, and was otherwise dilapidated. He also informed the Board that the
Yangs were paying the taxes on the property. The Yangs were not present at this hearing.
Nonetheless, the Board of Housing Appeals approved demolition of the building.
Less than a week after the hearing, the City sent a letter to the Yangs by regular mail
stating that the Board of Housing Appeals had affirmed the City’s order to demolish the building.
The post office did not return this letter to the City.
After the November 1, 2012 hearing, the City solicited bids for demolition of the
building. The contract was awarded to the lowest bidder, and the structure and parking lot were
razed in January 2013. The Yangs were alerted to the demolition by a phone call from a
business acquaintance who happened to be passing by the property and was surprised that it was
being leveled.
The Yangs filed suit in June 2013, alleging that the City violated their constitutional right
to procedural due process when it failed to provide adequate notice and afford an opportunity to
be heard prior to the bulldozing of the property. At the close of discovery, the parties filed cross-
motions for summary judgment, and the district court ruled in the City’s favor. The Yangs ask
us to reverse.
II.
This case is about procedural due process, the basic tenets of which are well-known.
“[P]rior to an action which will affect an interest in life, liberty, or property protected by the Due
Process Clause of the Fourteenth Amendment, a State must provide ‘notice reasonably
calculated, under all circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.’” Mennonite Bd. of Missions v.
Adams, 462 U.S. 791, 795 (1983) (quoting Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)). The Yangs challenge the content of the City’s notices and the means
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 13
by which the notices were transmitted. Because the content of the notices that the Yangs
presumably received are either unknown or plainly insufficient, I would reverse the district court.
“Notice must be one which is designed to actually inform the [interested party] of the
[potential deprivation], and the reason for [it.]” Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d
153, 166 (6th Cir. 1973). If the interested party is not informed prior to the hearing of the reason
for the proposed deprivation, the opportunity to be heard and present objections is rendered
illusory. See Transco Sec., Inc. of Ohio v. Freeman, 639 F.2d 318, 324 (6th Cir. 1981)
(“Without a clear understanding of at least some of the facts which comprised the grounds for
[the impending deprivation], the opportunity to present information is a meaningless one.”);
Eaton v. Charter Twp. of Emmett, 317 F. App’x 444, 448 (6th Cir. 2008) (explaining that “the
general notice and hearing requirements imposed by the Due Process Clause” include “a
reasonably definite statement of the charge or charges against [the interested party]” so that he
can “appear [at the hearing] and offer any objections”); cf. Brody v. Vill. of Port Chester,
434 F.3d 121, 130 (2d Cir. 2005) (“notice must . . . convey the required information” and
“Mullane [v. Central Hanover Bank & Trust Co.] requires as much notice as is practicable to
inform a condemnee of legal proceedings against his property” (emphasis added) (internal
quotation marks omitted)).
The content of the September 2012 notices sent to the Yangs’ residence appear to satisfy
the Fourteenth Amendment’s notice requirement. It advised of the threatened action, the reasons
for it, and how it could be contested. Unfortunately for the City, these notices were returned as
unclaimed. And “when mailed notice . . . is returned unclaimed, the [government] must take
additional reasonable steps to attempt to provide notice to the property owner.” Jones v.
Flowers, 547 U.S. 220, 225 (2006).
The majority holds that the posted October 2011 abandoned structure notice, the posted
July 2012 order to repair/demolish, the October 2012 hearing notice sent by regular mail, and the
November 2012 demolition notice also sent by regular mail, all establish that the City provided
the Yangs with the process they were due. I disagree.
1. The posted notices. The content of the October 2011 abandoned structure notice is a
mystery because it is not in the record. Thus, it is impossible to determine if this notice was
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 14
constitutionally adequate, and it would violate basic tenents of summary judgment to simply
assume that the notice supports the City’s position, see Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). Similarly, and contrary to the majority’s suggestion, the
substance of the July 2012 order to repair/demolish posted on the property is also unknown. So
again, there is no basis by which we can assess the adequacy of this notice.
2. The hearing notice. The October 2012 hearing notice, which was sent by regular mail
to the Yangs’ home address, was unequivocally deficient. It did, however, provide some
information. The “Re:” line of the hearing notice listed the address of the property. R. 48-20 at
2. The notice also informed that a hearing before the Housing Board of Appeals would be held
on November 1, 2012, at 7:00 p.m. at City Hall. The notice explained that the purpose of the
hearing was to provide a forum for “all interested parties regarding the City’s Notice to Repair or
Demolish the structure(s), in conformity to Chapter 10 of the Code of the City of Wyoming.” Id.
The hearing notice further advised that the Yangs had the right to attend the hearing, present
evidence, and have an attorney present.
Contrary to the majority’s assertion, the hearing notice did not alert the Yangs to
“inspection-related problems with the property,” Op. at 5; indeed, the word “inspection” is never
used in the letter, see R. 48-20 at 2. The hearing notice did not provide any reason at all for the
impending deprivation. It simply informed the Yangs that there would be a hearing at which
they could present evidence regarding the City’s September 2012 order to repair/demolish the
structure located on the property. The September 2012 order was not attached to this hearing
notice. And as previously discussed, the Yangs never received the September 2012 certified
mailing, which advised of the City’s inspection of the property, the result of that inspection, and
the specific provisions of the Code that the structure violated. No such details were provided in
the hearing notice.
We have previously held that “general notice” does “not permit adequate preparation for
participation in a meaningful way in any forthcoming hearing,” and therefore it does not satisfy
due process. Transco, 639 F.2d at 323. In fact, we, along with our sister circuits, have
consistently required specific reasoned notice when the government seeks to take action
adversely affecting a person’s protected property interest. See, e.g., Garcia v. Fed. Nat. Mortg.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 15
Ass’n, 782 F.3d 736, 741–42 (6th Cir. 2015); Brody, 434 F.3d at 130; Flaim v. Med. Coll. of
Ohio, 418 F.3d 629, 638–39 (6th Cir. 2005); Rosen v. Goetz, 410 F.3d 919, 931 (6th Cir. 2005)
(per curiam); Hamby v. Neel, 368 F.3d 549, 562 (6th Cir. 2004); Jefferson v. Jefferson Cnty. Pub.
Sch. Sys., 360 F.3d 583, 585 (6th Cir. 2004); Pope v. U.S. Postal Serv., 114 F.3d 1144, 1148
(Fed. Cir. 1997); Buckner v. City of Highland Park, 901 F.2d 491, 492–94 (6th Cir. 1990);
Holbrook v. Pitt, 643 F.2d 1261, 1281 (7th Cir. 1981).
In the absence of compelling facts in this case, the majority posits a hypothetical that is a
far cry from what happened here. Op. at 7–8. They ask us to imagine a scenario where the
government acknowledges that the plaintiff did not receive the original, detailed, and specific
notice, so it follows up with a letter in which it asks the plaintiff to call city hall so that it can
relay the information contained in the original notice. Id. Tellingly, the majority concedes that
the information the imaginary plaintiff would receive in the phone call from the government is
“necessary”. Id. at 8. On that point, we agree. It is indeed necessary for a property owner to be
provided with the reason(s) for an impending deprivation so that he can adequately prepare for
the forthcoming hearing. Palmer, 479 F.2d at 166. And it is unequivocally the government’s
burden to provide adequate notice; the onus is not on the aggrieved to investigate (or divine)
precisely why the government plans to deprive him of his protected property interest. See
Mullane, 339 U.S. at 314. The law in this Circuit is well-settled—“the purpose of notice is to
apprise the affected individual of, and permit adequate preparation for, an impending hearing.”
Transco, 639 F.2d at 323.
The skeletal hearing notice sent by the City did not provide enough information. The
Yangs were not provided with the reasons the City was contemplating taking some action against
their property. The bald reference to Chapter 10 of the City Code was not sufficiently specific,
as Chapter 10 consists of at least six potentially applicable articles, four of which also
incorporate the analogous provisions of the state code. This lack of specificity rendered the
hearing notice fatally deficient, and the subsequent hearing was therefore meaningless because
the Yangs could not competently prepare for it. More damning still, the City learned by the time
of the hearing that the certified letter containing the detailed order to repair/demolish had been
returned as unclaimed.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 16
The majority, singularly focused on “reasonable efforts,” makes much of the fact that the
City also sent the hearing notice to the Yangs’ realtor.2 Because the notice sent to the realtor was
identical to the constitutionally deficient letter sent to the Yangs, it is immaterial whether the
City’s act of sending it to the realtor was “a mere gesture.” Op. at 6. Insufficient notice does not
suddenly become sufficient because it is sent to multiple potentially interested parties. Again,
the question in this case is not only about the adequacy of the form of notice; it is also about
whether the notice informed.
3. The demolition notice. The November 2012 demolition notice informed the Yangs of
the outcome of the hearing—the City’s order to demolish the structure on the property was
affirmed, and the demolition would be completed at the convenience of the lowest bidding
contractor. The letter also advised the Yangs of their right to file an appeal in the county circuit
court within thirty days.
Although the demolition notice explicitly informed the Yangs that the City was going to
demolish the property, it suffers from the primary defect identified in the October 2012 notice in
that it does not explain the basis for the City’s decision. The letter states that the “Board of
Housing Appeals affirmed the City’s Notice and Order to Demolish,” R. 48-22 at 2, but the
Yangs never received that detailed notice, and the Board was well aware of this fact.
The majority, plainly contemptuous of the Yangs’ seeming inaction, holds that because
the physical demolition was still pending and the Yangs had the opportunity to appeal the
Board’s decision, the appellate hearing would have provided them the process they were due. It
is, in fact, confounding that the Yangs took no action in response to either the October 2012 or
November 2012 notices and made no attempt to contact the City until after the demolition was
completed in January 2013. However, the majority’s focus on this point confuses the issue. We
are not presented with a challenge concerning the availability of a pre-deprivation hearing. The
issue before the Court is whether the City’s notices satisfied due process, and the Yangs’
2
The majority suggests that mailing notice to the realtor was “eminently” reasonable because the return of
the certified mailing could only mean one of two things—that the Yangs actively refused to accept the City’s
correspondence or that they no longer lived at their Grand Rapids address. Op. at 6. In the majority’s rush to
ascribe a malign motive to the Yangs’ behavior that has no basis in the record, they overlook an entirely plausible
alternative theory—that the Yangs simply were “not home when the postman called and did not retrieve the letter at
the post office,” Jones, 547 U.S. at 234.
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 17
behavior has no bearing whatsoever on that question. The City was constitutionally required to
use reasonable efforts to notify the Yangs that it planned to demolish their property and to
provide the reason(s) for its proposed course of action. The City failed to do the latter, and this
ends the inquiry.
Even considered in the aggregate, the notices sent by the City were not enough to satisfy
its constitutional obligation. Although there is no basis to attribute a lack of good faith to the
City in its efforts to inform the Yangs of the impending demolition, the record we have before us
demonstrates that the various postings and mailings, even cobbled together, lack any information
regarding why the City wanted to demolish the property. The majority fixates on the number of
notices that were posted and mailed; I am at loss for yet another way to explain that the quantity
of notice is wholly irrelevant to the assessment of the quality of notice, i.e., whether the reason(s)
for the proposed deprivation were provided.
At this point it is worth emphasizing that all the City had to do to comply with due
process is send the September notices (two two-page documents) by regular mail to the Yangs’
home address—an endeavor that presumably would have taken less than five minutes and cost
less than $1. Incredibly, the majority finds this to be too heavy a burden for the City to bear
before commissioning a $22,500 demolition of private property.
III.
The majority takes what is otherwise an unremarkable property dispute and uses it as a
vehicle to drastically reshape the law of procedural due process and shift the burden from
government to citizen. According to the majority, the government discharges its constitutional
burden when it mails a postcard that simply reads, “The [governmental unit] is contemplating
[taking said action] against [property address],” as long as a phone number is included in the
letterhead. See Op. at 6, 7–8.
Ignoring the factual deficiencies in the majority opinion, its conclusion ultimately rests
upon two judgments: (1) the Yangs were not sufficiently diligent in following up with
bureaucratic notices; and (2) the Yangs did not stop by to check on their vacant and for-sale
No. 14-1846 Yang, et al. v. City of Wyoming, Mich. Page 18
commercial property often enough. The question the majority leaves unanswered for the
millions of property owners in this Circuit is this: how diligent is diligent enough?
Are commercial property owners obligated to inspect their lot once every six months?
Once every three months? Once a week? Does the frequency change if it is a summer cottage in
northern Michigan? What about a farm in Appalachian Ohio? Presumably property owners are
at their primary residence nearly every day and will not have to face such uncertainty regarding
their homes. Beware taking an extended vacation, though. Or at least reread the majority
opinion before you do and try to discern how often you will need to call the city, the county, and
the state, to remind them that you still value your property (and to provide a temporary
forwarding address for government correspondence). This is not mere rhetorical flourish—in
this very case, the property went from being licensed by the government as fit for commercial
food service to being condemned by the government as unfit for habitation in just a few months;
it was reduced to a pile of rubble not long thereafter. It seems unlikely that the condition of the
property could have deteriorated so drastically in such a short time.
IV.
The undisputed facts in this case reveal that the notices that the Yangs presumably
received provided less information than the average parking ticket. The majority errs in holding
that such scant notice satisfies due process. I therefore dissent.