Opinion
CIVIL ACTION NO. 3:98-CV-436-R
November 22, 2002
MEMORANDUM OPINION AND ORDER
Acting on interlocutory appeal under 28 U.S.C. § 1292(b), the Fifth Circuit Court of Appeals issued an opinion affirming in part, vacating in part, and remanding for further proceedings in accord with its opinion this Court's decision regarding class certification in this case. James v. City of Dallas, 254 F.3d 551 (5th Cir. 2001) (the "Opinion"). Pursuant to the decision of the Fifth Circuit, and for the reasons discussed below, this Court now MODIFIES THE CLASS DEFINITION of the Process Class, DISMISSES all race discrimination claims pertaining to the named Plaintiffs, and DISMISSES certain other claims of the Process Class and named Plaintiffs.
I. Introduction — The Previously Certified Classes
On October 7, 1999, this Court, ruling from the bench, granted PLAINTIFFS' AMENDED MOTION FOR CLASS CERTIFICATION. Specifically, as discussed in more detail in this Court's Memorandum Opinion of April 11, 2000, the following two classes were certified:
(1) Process Class: a Rule 23(b)(2) class composed of all property owners who had a repairable single family structure demolished by the City of Dallas' Urban Rehabilitation Standards Board ("URSB"): (i) and the City demolished the structure without providing the property owner notice of the opportunity to contest the proposed demolition at a hearing prior to the issuance of the order causing the demolition, (ii) and whose structure was demolished without a warrant. This class includes those owners who structures were demolished pursuant to a default demolition order.
(2) Race Discrimination Class: a Rule 23(b)(2) class composed of all persons who share the following characteristics: (i) owners of at least one parcel of real property on which a single family structure was placed, (ii) and which single family structure was a repairable single family structure that was demolished pursuant to a City URSB order, (iii) and either the owner is African-American or the repairable single family unit demolished pursuant to the City URSB order was located in a predominantly black census tract that was 50% or more non-Hispanic black according to the 1990 U.S. census.
2000 WL 370670, Memorandum Opinion, at *1-2 (N.D. Tex., April 11, 2000) (the "2000 Memorandum"); see also Order Certifying Glasses (N.D. Tex., August 18, 2000). Thus, in addition to Irma Jean James and Terri Larry (the "named Plaintiffs" or "Plaintiffs"), two classes were previously certified in this case: (1) a class alleging violations of the Fourth, Fifth and Fourteenth Amendments of the United States Constitution (the "Process Class"); and (2) a class alleging violations of federal civil rights statutes, 42 U.S.C. § 1981, 2000d, 3604(a), 5301(b)(2), and 5309 (the "Race Discrimination Class"). James, 254 F.3d at 558.
II. The Impact of Freeman on the Process Class
In a footnote to the Opinion, the Fifth Circuit stated:
The district court certified the classes before this court decided Freeman v. City of Dallas, 242 F.3d 642 (5th Cir. 2001) (en banc). In Freeman, this court addressed a Fourth Amendment challenge to the City of Dallas's warrantless seizure and destruction of buildings as urban nuisances. See id. at 654. The court held that the seizure of buildings designated "nuisances" pursuant to established and non-arbitrary police power procedures was not rendered per se unreasonable by the city's failure to obtain a warrant to enforce a demolition order. See id. As currently formulated, the Process Class does not reflect the considerations necessitated by Freeman. On remand the district court will be required to evaluate the effect of Freeman on the Process Clause.James, 254 F.3d at 561 n. 8 (emphasis added). The Opinion was issued June 18, 2001 and reviewed this Court's class certification rulings made in its 2000 Memorandum. The Opinion makes no mention of, and thus it appears the Fifth Circuit was unaware of, this Court's Memorandum Opinion and Order of May 22, 2001 in which Freeman and its impact on the Process Class were addressed. 2001 WL 586688, at *4-5 (N.D. Tex., May 22, 2001) (the "2001 Memorandum"). In its 2001 Memorandum, this Court took the position that Freeman was distinguishable from this case and hence did not require any changes to the Process Class. 2001 WL 586688, at *4 (stating that Freeman "does not vitiate the Plaintiffs Due Process claim"). of course, at the time this Court addressed Freeman, it did not have the benefit of, nor was it bound by, the clear guidance of the Opinion. The direct statement in the Opinion that "the Process Class does not reflect the considerations necessitated by Freeman" makes this Court's prior interpretation of Freeman untenable. James, 254 F.3d at 561 n. 8 (emphasis added). Therefore, it is proper for this Court to reexamine and clarify its earlier comments regarding Freeman and its impact on the Process Class in this case.
In Freeman, the two plaintiffs (the actual purchaser and her brother) acquired two vacant eight-unit apartment buildings which were in need of serious repairs (one building was purchased for $10.00 and the other for $1.00). Subsequent to the purchase, the City inspected the buildings and concluded that almost $200,000 in repairs was needed in order to bring the buildings into compliance with City building codes. After the inspections, the URSB mailed a notice of hearing to the owners of record of each of the two buildings. One of the two plaintiffs appeared at the hearings on both properties. At the hearing, the URSB panel voted to demolish the buildings as urban nuisances. The plaintiff then signed notices of demolition for each building and requested a rehearing before the URSB. The rehearing was granted, and, at the rehearing, the URSB panel again voted to demolish both buildings. At the end of the rehearing, the plaintiff again signed notices of demolition for both buildings. The notices stated that the decision of the URSB could be appealed to state court within 20 days; plaintiffs did not file any such appeals. For a more detailed factual summary, see Freeman v. City of Dallas, 242 F.3d 642, at 642-47 (5th Cir. 2001) (en banc).
The Freeman plaintiffs argued that the destruction of their property violated the due process guarantees of the Fifth and Fourteenth Amendments. Specifically, they argued that the due process violations occurred because they were:
not told that the Department of Housing and Neighborhood Services had briefed [URSB] panel members on their properties, they were not provided with the Department's information on their property, they were not given notices of the tours of their properties by URSB panel members, and the Department officials who reported the code violations were not present at either the hearings or the rehearings.Freeman v. City of Dallas, 186 F.3d 601, at 607 (5th Cir. 1999). The Fifth Circuit affirmed the granting of summary judgment in favor of the Freeman defendants on the due process claims.
The Due Process analysis of the earlier Freeman panel decision was adopted in its entirety by the en banc Freeman majority and is thus part of the en banc decision. Freeman, 242 F.3d 642, 647 n. 4.
The facts relating to the Freeman plaintiffs due process claims are easily distinguishable from those of the instant case. Crucially, the Freeman plaint ifs were provided notice of and thus were able to, and did actually participate in the hearings at which the determination was made to classify their properties as nuisances and the order was given to have them demolished. Because the Freeman plaintiffs were given notice prior to the hearings and participated in the hearings, they presented a much weaker due process claim than the Plaintiffs in this case. The Freeman plaintiffs had received notice that the City was considering demolishing their property, had participated in two hearings regarding their case, and had twice signed demolition notices for their properties. Thus, the Freeman plaintiffs could only complain of issues such as "not [being] given notices of the tours of their properties by URSB panel members." Id. This is in striking contrast to this case where Plaintiffs allege failure to receive even minimally adequate notice prior to the demolition team and wrecking ball arriving at their property. As this Court stated in the 2001 Memorandum, the "major factor in determining the members of [the Process] class is whether or not they were denied due process because their homes were demolished before they received proper notice of an administrative hearing." 2001 WL 586688, at *5 Thus, this Court concludes that the holding of Freeman on the Due Process claims does not affect the Process Class in this case.
Of the two Freeman plaintiffs (Freeman and Brown), Brown received notice regarding only one of the two properties she owned because she had not yet filed a warranty deed on the other. Freeman apparently received notice from Brown, as it was Freeman who attended the hearings, stating that he was the "attorney-in-fact for Brown." Freeman, 242 F.3d at 646, 646 n. 1.
In addition to the due process claims, the Freeman plaintiffs argued that it was unconstitutional per se under the Fourth Amendment for a city to demolish a building (even if the had declared it a nuisance) without the issuance of a warrant. The en banc majority of the Fifth Circuit, reversing an earlier panel decision, rejected this argument. Instead, the majority of the Fifth Circuit construed the Fourth Amendment as:
contain[ing] two separate and independent clauses. The first proscribes "unreasonable searches and seizures," and the second prescribes the narrow conditions under which a warrant may issue. Nothing in the text suggests that warrants are required for every search or seizure, nor is the existence of a warrant a sine qua non for a reasonable search or seizure. While the text plainly mandates reasonableness in the seizure, it does not instruct whether a warrant is necessary to ensure the reasonableness of the City's demolition order.Freeman, 242 F.3d at 648. The Court stated that, as the two clauses are independent, "a warrant is not required to establish the reasonableness of all government searches." Id. at 650. Instead, "the fundamental inquiry . . . is the reasonableness of the City's seizure." Id. After examining the procedures employed by the City of Dallas and the particular facts relating to the Freeman plaintiffs, the Fifth Circuit found no violation of the Fourth Amendment, stating:
[w]hatever else the City's enforcement of its municipal habitation code might be, it is sufficiently hedged by published standards, quasi-judicial administrative proceedings, and flexible remedies that it is not arbitrary. . . . Fourth Amendment reasonableness means non-arbitrariness. The Fourth Amendment was not violated here.Id. at 654.
Unlike Freeman's due process holding, its holding on the Fourth Amendment claims does impact the current definition of the Process Class, and it is this aspect of Freeman that this Court did not adequately address in its 2001 Memorandum. There are three aspects to consider in determining the impact of the holding of Freeman on the Process Class. First, the facts of Freeman, as discussed above and in our May Memorandum, are distinguishable from those of this case. Again, the crucial distinction is the contrast between the notice provided in Freeman and the alleged lack of proper notice provided to named and Process Class Plaintiffs in this case. Indeed, the Fifth Circuit, stated that the Freeman plaintiffs "had ample notice and a full panoply of administrative remedies." Id. at 653. Proper notice is required for even a "full panoply of administrative remedies" to be a meaningful guarantee of one's constitutional rights — a well-insulated house will not shield its owner from the cold unless he has the key. Second, the holding in Freeman that warrants are not required prior to demolition if the City has followed its procedures, certainly does make it more difficult for Plaintiffs to succeed on their Fourth Amendment claim. Indeed, the Fifth Circuit stated in a footnote in Freeman, that "we believe a showing of unreasonableness in the face of the City's adherence to its ordinance is a "laborious task indeed.'" Id. at 654 n. 18. However, this claim is not entirely foreclosed, for Plaintiffs argue, inter aba, that the City has deliberately engaged in practices which may or may not be condoned by City ordinances and have the effect of depriving Plaintiffs of any meaningful notice. Third, if the issuance or lack thereof of a warrant is not per se a legally significant event in the process leading to the demolition of a building by the City, then such issuance or lack thereof of a warrant does not impact the Process Class. To more accurately reflect Freeman, the Process Class definition should be modified slightly to take this into account, by deleting the second subdivision, which currently reads "(ii) and whose structure was demolished without a warrant" (as well as making corresponding changes in punctuation). Thus, the revised class definition for the Process Class in this case is:
(1) Process Class: a Rule 23(b)(2) class composed of all property owners who had a repairable single family structure demolished by the City of Dallas' Urban Rehabilitation Standards Board ("URSB") and the City demolished the structure without providing the property owner notice of the opportunity to contest the proposed demolition at a hearing prior to the issuance of the order causing the demolition. This class includes those owners who structures were demolished pursuant to a default demolition order.
This change in the class definition does not affect the certifiability of the class under Rule 23(b)(2) of the Federal Rules of Civil Procedure as the class still meets the requirements of numerosity, commonality, typicality, adequacy and predominance of injunctive relief that were set forth in the Opinion. See James, 254 F.3d at 569-573.
III. Dismissal of Claims Pursuant to James
In addition to the footnote requiring discussion of the implications of Freeman on the Process Class, the Opinion also made several rulings, based on its analysis of Article III standing, which greatly narrow the claims in this case. Specifically, the Fifth Circuit held:
Because we determine that the named Plaintiffs do not have standing to seek the relief requested for the "Race Discrimination Class," we VACATE the district court's certification of that class and REMAND with instructions to dismiss all the Race and Discrimination claims against the City and HUD and to dismiss HUD from the lawsuit. Because we determine that the named Plaintiffs do have standing to seek the relief requested for seven of their twelve Process Class claims against the City and we determine further that the district court did not abuse its discretion in certifying the "Process Class," we AFFIRM AS MODIFIED the district court's certification of that class. Finally, because we determine that the named Plaintiffs do not have standing to seek the injunctive relief requested for five of their Process Class claims, we REMAND with instructions to dismiss those claims.James, 254 F.3d at 573. In an Order of June 26, 2002, this Court dismissed HUD from this case. However, the other mandates from the Fifth Circuit have not yet been implemented by this Court.
As stated above, the Race Discrimination Class was vacated by the Fifth Circuit. It is hereby ORDERED that all of Plaintiffs' claims against the City alleging violation of federal civil rights statutes are DISMISSED.
In addition, the following five requests for injunctive relief are DISMISSED both from the named Plaintiffs and from the Process Class: (1) cease demolition of repairable structures that are owned by African Americans or are situated in African-American areas; (2) cease demolition of repairable structures without adequate notice; (3) return money paid with interest for demolition; (4) set aside foreclosures based on demolition liens; and (5) grant the named Plaintiffs clear title to a comparable replacement home. James, 254 F.3d 568 n. 20; see also Id. at 564 n. 10 (listing the seven remaining Process Class claims).
IV. CONCLUSION
For the foregoing reasons, this Court hereby MODIFIES THE CLASS DEFINITION of the Process Class, DISMISSES all race discrimination claims pertaining to the named Plaintiffs, and DISMISSES certain other claims of the Process Class and named Plaintiffs.