Opinion
No. 07-20-00171-CV
10-16-2020
GERALD DUISBERG, APPELLANT v. CITY OF AUSTIN, APPELLEE
On Appeal from the 261st District Court Travis County, Texas
Trial Court No. D-1-DN-16,001869, Honorable Dustin M. Howell, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
May a homeowner permit his house to deteriorate to the level of becoming a "public nuisance," forgo undertaking repairs despite being notified by the city of their need, and then invoke a portion of the Bill of Rights to nullify civil penalties which accrued after being afforded opportunity to avoid them? Gerald Duisberg attempted that here. After forgoing repairs necessary to render his home compliant with ordinances implemented by the City of Austin, he asserts that the accrued and accruing penalties of $33,570 and $500 per week, respectively, are excessive and violative of the Eighth Amendment of the United States Constitution. The former sum represents, for the most part, the accrual of a $10 a day penalty assessed by Austin via an order executed in January of 2013. Via City order executed in April of 2016, Austin ended the accrual of that $10 a day sum and substituted a $500 a week civil penalty in its stead. Furthermore, each order conditioned accrual of the daily or weekly penalty assessed upon Duisberg's failure to complete the necessary repairs. Should he have performed the repairs, the penalties would have stopped. But, he did not.
The issue comes to us by way of an appeal from a final order granting Austin's summary judgment motion. Though that decree does more that reimpose the penalties ordered by Austin, that is the only aspect of it before us. We affirm.
Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
Duisberg does not contest Austin's authority to either execute code provisions obligating him to maintain his home and its environs or to impose penalties due to non-compliance. Nor does he dispute here 1) that his home and environs were noncompliant or 2) that they became and remained a "nuisance" to the neighborhood.
We further note that in levying his constitutional attack upon the penalties, Duisberg made no effort to illustrate that a constitutional provision encompassing punishment actually applied to the assessment of a civil penalty imposed to gain compliance with city code provisions. See Timbs v. Indiana, ___ U.S. ___, ___, 139 S. Ct. 682, 686-87, 203 L. Ed. 2d 11 (2019) (stating that like the Eighth Amendment's proscriptions regarding cruel and unusual punishment and excessive bail, the protection against excessive fines guards against abuses of government's punitive or criminal-law-enforcement authority); Austin v. United States, 509 U.S. 602, 609-10, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) (stating that the purpose of the 8th Amendment was to limit the government's power to punish and the "Excessive Fines Clause limits the government's power to extract payments . . . 'as punishment for some offense.'"). Austin raised the issue on appeal but not in either its motion for summary judgment or response to Duisberg's motion for partial summary judgment. This is problematic since the grounds upon which we may affirm or reverse a summary judgment are limited to those presented to the trial court. TEX. R. CIV. P. 166a(c) (stating that issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (holding that a motion for summary judgment must stand or fall based on the grounds stated in the motion). So, we merely assume arguendo that the penalties at bar liken to punishment within the ambit of the Eighth Amendment and turn to the contention at hand.
The Eighth Amendment of our United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. Its prohibitions apply to States and their political subdivisions through the Due Process Clause of the Fourteenth Amendment. Timbs, 139 S. Ct. at 686-87.
In averring that the civil penalties at issue here were "excessive fines," Duisberg invited us to apply United States v. Bajakajian, 524 U.S. 321, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998). There, our United States Supreme Court said that the relevant inquiry under the Excessive Fines Clause "is the principle of proportionality." Id. at 334. That is, the amount of the fine (or in that case, the forfeiture) "must bear some relationship to the gravity of the offense that it is designed to punish." Id. It does not bear acceptable relationship, though, "if it is grossly disproportional to the gravity of a defendant's offense." Id.; compare State v. Morello, 547 S.W.3d 881, 889 (Tex. 2018) (involving the excessive fines provision found in article 1, § 13 of the Texas Constitution and stating that a court will not override the legislature's discretion to prescribe fines except in extraordinary cases where the fine is so manifestly violative of the constitutional restriction as to shock the sense of mankind).
Next, our Texas Legislature authorized the assessment of a civil penalty of up to $1,000 per day for violating a city ordinance like that of Austin. TEX. LOC. GOV'T CODE ANN. § 54.017(b) (West 2008). Simple math reveals that a daily penalty of $10 is 1% of the maximum allowed by statute. A penalty of $500 per week equates to about $70 a day or 7% of the maximum. Again, whether the tag of excessive may be affixed to a daily penalty of either 1% or 7% of the cap is not an argument proffered by Duisberg. Instead, he avoids the likely answer to that by attempting to turn our focus on the sum accrued over the years. That is, he urged in his appellant's brief that "the excessive fines analysis looks at the total amount of the fines assessed, not the amount assessed per violation, or even per day." And, he cited the intermediate appellate court opinion in Nadaf v. Tex. Comm'n on Envtl. Quality, No. 04-13-00068-CV, 2014 Tex. App. LEXIS 4335 (Tex. App.—San Antonio Apr. 23, 2014, no pet.) (mem. op.), to support it.
Recovery of the penalty is conditioned upon the premise's owner being notified of the ordinance and after such notification committing acts in violation of it or failing to take action necessary to comply with it. TEX. LOC. GOV'T CODE ANN. § 54.017(a)(1), (2).
Nadaf dealt with the excessive fines clause in our Texas Constitution and a penalty imposed under the Texas Water Code. Id. at *15. The court noted that the Water Code authorized the assessment of a penalty not exceeding $10,000 per violation and that each day a violation occurred could be considered a separate violation. Id. at *16. Though Nadaf apparently committed numerous violations over a five-year period, he was only penalized for five of them, that is, one per year. Id. Given five violations, statute permitted a maximum penalty of $50,000. Yet, the Environmental Quality Commission deemed his violations minor, assessed only a $2,500 sum for each, coupled them with other factors to increase the penalty, and derived a total of $15,875. Id. at *8-9. The sum was found not to be unconstitutionally excessive given its relationship to the likely "environmental costs of a clean-up," which costs "would likely exceed the penalty assessed." Id. at *16-17. In short, the penalty passed constitutional muster in light of the harm the pertinent administrative regulations attempted to prevent. Id. Admittedly, the court focused on the total penalty levied in conducting its analysis. But, missing from the opinion is any directive that one must only focus on the total penalty or that there is but one prescribed way to undertake an "excessive fines" analysis. The latter is especially important given our Texas Supreme Court's decision in State v. Morello.
In Morello, the court had to determine whether a $367,250 civil penalty assessed against Morello around 2014 for his non-compliance with an Environmental Quality Commission remediation plan was excessive under the article I, § 13 of the Texas Constitution. Per the latter, "excessive bail shall not be required, nor excessive fines imposed." TEX. CONST. art. 1, § 13; Morello, 547 S.W.3d at 889 (quoting TEX. CONST. art. 1, § 13). The court initially observed that 1) the term "fines" within the provision encompassed "civil penalties of the type at issue here" and 2) prescribing fines lay within the legislature's discretion, which discretion would not be overridden except in extraordinary cases shocking the sense of mankind. Morello, 547 S.W.3d at 889. Then, it noted that: 1) the State sought the minimum penalty; 2) statute called for the penalty to accrue daily; 3) Morello was notified of the violations involved in 2004; and 4) most importantly, "[h]is own delay resulted in the continued accrual of civil penalties." Id. Those indicia led the court to deem that the $367,250 penalty failed to shock the sense of mankind. Id.
If nothing else, we learn from Morello that multiple factors may be considered in the analysis. They include the amount of the initial fine, the number of violations involved, the manner in which the penalty accrues, the time period over which they accrue, knowledge of the violation, when knowledge of same was obtained, and the actor's response to that knowledge. Indeed, these very same indicia were utilized by other court's in analyzing whether a penalty or fine was grossly disproportionate to the gravity of the offense for Eighth Amendment purposes.
For instance, the $700,000 fine involved in Moustakis v. City of Fort Lauderdale, 338 Fed. Appx. 820 (11th Cir. 2009) (per curiam), was held constitutional. It arose from the Moustakises having failed to bring their home into compliance with local codes. Id. at 821. They were notified of the violations in 1993, which violations resulted in a $150 penalty assessed per day and until the house was bought up to code standards. Furthermore, the violations went uncorrected. When the Moustakises sued Fort Lauderdale in 2008 to remove a lien on their house, they argued that the $700,000 penalty was impermissibly excessive under the Eighth Amendment. Id. at 822. Both the trial and appellate courts disagreed. According to the latter, the Moustakises did not posit that the $150 per day penalty was excessive but, rather, focused on the cumulative amount. Id. The court went on to observe that they themselves created the $700,000 sum by failing "to bring the house into compliance with the Code each day for 14 years." Id. So, "[r]ather than being grossly disproportionate to the offense, the $700,000 fine [was], literally directly proportionate to the offense." Id. It was proportionate because it represented a small fine assessed for each day the homeowners failed to comply with applicable ordinances while knowing of the need to so comply. The ultimate sum may have been rather large, but the daily penalties assessed for the daily violations were not unconstitutionally disproportionate to the offenses.
The Moustakis court also distinguished the situation before it from that in Bajakajian. The latter did not involve multiple offenses resulting in the forfeiture of the $357,144 there involved. Bajakajian engaged in only one offense involving one instance of carrying more than $10,000 when leaving the United States. Id. at 821-22. Additionally, that single criminal violation actually carried a maximum penalty of less than a year imprisonment and no more than a $5,000 fine. Id. On the other hand, the Moustakis engaged in daily violations of the local housing code for over a fourteen-year period, and each violation carried its own fine of $150. Consequently, the cumulative sum was actually proportionate to the nature of the multiple violations, unlike the forfeiture experienced by Bajakajian for committing only one bad act. Id. at 822; see also Wemhoff v. City of Baltimore, 591 F. Supp. 2d 804, 809 (D. Md. 2008) (involving an initial parking fine, non-payment, and the accrual of monthly penalties and rejecting an excessive fine claim because "[t]he fact that the overall fine has now grown to hundreds of dollars is more a reflection of Mr. Wemhoff's failure to timely pay or contest the original fine owed than it is a reflection of unconstitutional excess in the design of the late payment penalty").
Unlike Bajakajian, we do not have one violation committed by Duisberg, we have over 730. They occurred daily over the course of several years. He does not argue that either the initial $10 a day or the subsequent $500 weekly penalties were excessive, in and of themselves. His focus lay on the accumulated sum arising from his daily failure to bring his house into compliance with local ordinances. The record contains evidence illustrating that he knew of the violations and his need to comply by the end of 2012 but allowed his home to remain noncompliant. So, the $33,000+ civil penalty resulted from his daily inaction and the more than 730 violations committed by that inaction. Like the Texas Supreme Court said of Morello, Duisberg's "own delay resulted in the continued accrual of civil penalties." Like the Moustakises, he created the $33,000+ sum by failing "to bring the house into compliance with the Code each day" over the course of years. Like Wemhoff, "[t]he fact that the overall fine has now grown . . . is more a reflection of [Duisberg's] failure to timely [comply] . . . than it is a reflection of unconstitutional excess." In effect, Duisberg asks us to countenance his continual violations of housing codes by striking down the penalty he permitted to accrue by his own knowing inaction. The civil penalty under attack here is no more disproportionate than those attacked in Morello, Moustakis, or Wemhoff because it reflects a proportionate nominal sum he allowed to accumulate over multiple years.
Duisberg attempted to justify his inaction by contending that he had to leave Texas for Florida to care for his father. Assuming that were true, his father died in 2013. So, having to be in Florida to care for his father hardly explained Duisberg's failure to bring his Austin home into compliance during years 2014, 2015, and 2016.
We overrule the sole issue before us and affirm the trial court's final order.
Brian Quinn
Chief Justice