Opinion
C99-103 MJM.
February 16, 2000.
OPINION AND ORDER
Before this court is Rex Realty Company's ("Rex") motion for partial summary judgment on its claim that the City of Cedar Rapids ("the City") denied it procedural due process. Rex sues the City under 42 U.S.C. § 1983 claiming the City took its property without affording notice and a hearing on the legality of the taking, in violation of the Fifth and Fourteenth Amendments.
FACTS
Rex was the owner of real estate located on 5625 6th Street, S.W., in Cedar Rapids, Iowa. On June 2, 1999, the City passed Resolution No. 1098-6-99 seeking to condemn a portion of Rex's property. On June 19, 1999, an Application for Condemnation was filed in the office of Chief Judge F. Honsell of the Sixth Judicial District of the Iowa District Court. After the application of condemnation was signed by Chief Judge Honsell, Rex was served with a Notice of Condemnation. The notice provided in relevant part:
1. "You are hereby notified that the Incorporated City of Cedar Rapids, Iowa desires condemnation" of a portion of Rex's property.
2. "That condemnation is sought for the purposes of additional street right-of-way for Fourth Street Court S.W."
3. "A Commission has been appointed as provided for by law for the purpose of appraising the damages which will be caused by this condemnation."
4. The Commissioners would meet at the Linn County Correctional Center on the 21st day of July, 1999, at 9:30 a.m. to view the premises and proceed to appraise the damages, at which time "you may appear before the Commissioners if you care to do so."
On July 22, 1999, a constituted Compensation Commission considered the evidence and entered an award appraising the damages sustained by Rex by virtue of the eminent domain taking. Rex appeared at and participated in the July 22nd condemnation hearing.
Rex was not given specific notice of, or opportunity for a hearing before the City Council on the issue of whether the condemnation was for a public purpose.
STANDARD FOR SUMMARY JUDGMENT
The standard for granting summary judgment is well established:
Rule 56. Summary Judgment
(c) . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56.
A court considering a motion for summary judgment must view all facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. See Munz v. Michael, 28 F.3d 795, 796 (8th Cir. 1994); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation omitted); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
ANALYSIS
As the material facts in this case go largely undisputed, the sole issue before this Court is whether Rex has a constitutionally protected right to pre-detrimental notice and hearing with regard to the right to be free from a governmental taking for other than a public purpose.
Rex premises its argument on the Due Process Clause of both the state and federal constitutions, stating notice and a hearing on the determination of public purpose is required before the City can deprive a landowner of its property. While it is a general principle of due process that deprivation of property be preceded by notice and an opportunity to be heard, this principle is subject to various exceptions; eminent domain, the issue in the present case, being one of them.
Eminent domain under public authority is presumed by the state and federal constitutions, subject to the limitation that "[p]rivate property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by the jury. . . ." Iowa Const. Art. I, § 18; See also U.S. Const. Amend. V, ("nor shall private property be taken for public use, without just compensation"). The issue of the level of procedural due process that should be afforded when the state proceeds under its power of eminent domain to condemn property for a public purpose was squarely before the Supreme Court in North Laramie v. Hoffman, 268 U.S. 276, 284-85 (1925). There, the Court held "the necessity and expediency of the taking of property for public use `are legislative questions' . . . and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment.'" Id. (citing Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 678 (1923)) ("the necessity and expediency of taking property for public use is a legislative and not a judicial question").
Rex attempts to distinguish North Laramie from the present action, maintaining the Court's discussion of due process was limited to the issues of the position of a proposed road and compensation for the taking, as opposed to whether the taking was for a public purpose. Rex, relying predominantly on general-purpose due process precedent, argues that the determination of whether the taking is for a public purpose is distinct from the determination of compensation and should be afforded the full array of procedural due process protections, namely notice and a predeprivation hearing.
Rex's "procedural due-process analysis, valid as it might be in its proper sphere, is simply inapplicable to eminent-domain cases." Muscarello v. Village of Hampshire, 644 F. Supp. 1016, 1019 (N.D.Ill. 1986). The Muscarello court properly explained the limitation of procedural due process as applied to actions of eminent domain:
The Fifth Amendment does not proscribe the taking of property; it proscribes the taking of property without just compensation. . . . Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a "`reasonable, certain and adequate provision for obtaining compensation'" exist at the time of the taking. . . . Similarly, if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.
* * * * * * * *
In other words, the Due Process Clause prohibits the taking of property without due process, but that is only the beginning of the inquiry. In response to the controlling question of precisely what "process" is "due," the Just Compensation Clause expressly permits property to be taken now for a public use, subject only to the later availability of just compensation. Put differently, in the public-taking context "due process" means no more than the provision of just compensation, which may be made post-taking without violating the Due Process Clause. Id. at 1018-19 (citations and footnotes omitted).
Likewise, the Seventh Circuit in Collier v. City of Springdale, 733 F.2d 1311, 1314 (8th Cir.); cert denied 469 U.S. 857 (1984), reasoned:
If the government chooses to dispense with formal condemnation proceedings prior to the seizure of private property for public use, then the constitution only requires that the property owner be able to bring an inverse condemnation action to compel just compensation. . . . Thus, it is well settled that a sovereign vested with the power of eminent domain may exercise that power consistent with the constitution without providing prior notice, hearing or compensation so long as there exists an adequate mechanism for obtaining compensation.
Rex's attempt to characterize its claim as one dealing only with the determination of public purpose creates a superficial distinction. Yet courts have repeatedly held that landowners who are guaranteed an adequate post deprivation remedy for obtaining just compensation, are not entitled to notice or a hearing prior to the taking. Put another way, the clear weight of legal authority suggests a state is under no constitutional obligation to provide a pre-deprivation hearing to challenge the legality of a condemnation. See Collier, 733 F.2d at 1314; Smart v. Texas Power Light Co., 525 F.2d 1209, (5th Cir.) cert denied 429 U.S. 826 (1976) (finding that because the "necessity and expediency" with regards to a taking is legislative, "quick taking without prior hearing is consistent with due process"); Stringer v. United States, 471 F.2d 381, 383 (5th Cir.) cert denied 412 U.S. 943 (1973); United States v. 131.68 Acres of Land, 695 F.2d 872, 876 (5th Cir.) cert denied 464 U.S. 817 (1983) ( "[t]he question on . . . whether the government may exercise its eminent domain power consistently with the Fifth Amendment by physically seizing property without any prior notice, hearing, or compensation. The answer to this question is yes."); Bieneman v. City of Chicago, 662 F. Supp. 1297, 1301 (holding "a governmental body may take land without prior notice or a hearing, leaving the landowner with an action for inverse condemnation as his sole remedy."); United States ex. rel. Tennessee Valley Authority v. Road Easement, 424 F. Supp. 567, 569 (E.D.Tenn. 1976) (finding "[a] hearing on the taking of private property for an intended public use is not essential to due process under the Constitution, Fifth Amendment, Due Process Clause"); Golden Gate Corp. v. Sullivan, 314 A.2d 152, 154 (R.I. 1974) (finding "the right to a hearing before the taking of private property by eminent domain is not a right encompassed within the fourteenth amendment.")
In addition to a post-deprivation of remedy of just compensation explicitly provided by the Iowa statute, Iowa Code § 6B et seq., the Iowa Supreme Court has interpreted the statute to include pre-condemnation relief in the form of an injunction. See Banks v. City of Ames, 369 N.W.2d 451, 454 (Iowa 1985) ("issues of necessity and public purpose may be raised by an independent action seeking to enjoin condemnation").
Rex points to the case, Lemon v. Mississippi, 735 So.2d 1013, 1020 (Miss. 1999), to support its proposition that a predeprivation hearing should be allotted for the determination of public purpose. The Lemon Court relied primarily on Parratt v. Taylor, 451 U.S. 527, 538-39 (1981) and its progeny. However, as earlier stated, procedural due process as applied to governmental takings pursuant to the state's eminent domain power, is distinct from that discussed in Parratt v. Taylor. c.f. Muscarello, 644 F. Supp. at 1018. Courts addressing the issue of procedural due process in the realm of eminent domain have repeatedly held there is not constitutional right to a predeprivation hearing on the legality of the condemnation. See supra. For these reasons, this Court respectfully disagrees with the analysis of the Lemon court.
CONCLUSION
In summary, this court finds plaintiff's claim of due process falls within the purview of case law which holds that a pre-deprivation hearing is not constitutionally required prior to a governmental taking under its authority of eminent domain. For the reasons stated herein, this court denies plaintiff's motion for partial summary judgment.
While the City did not move for summary judgment on this issue, the findings of law in this opinion and order appear to be dispositive of plaintiff's procedural due process claim. As such, a motion for summary judgment by the City would be placed on an expedited briefing schedule.