Robert Kornblum v. St. Louis County, Missouri John Doe, an Unknown Person and John Doe Ii, an Unknown Person

HANSEN, Circuit Judge,

with whom JOHN R. GIBSON, FAGG, WOLLMAN and MURPHY, Circuit Judges, join, dissenting.

Because our court departs from well-established authority and turns a case of simple county government carelessness' into a constitutional claim under section 1983, we respectfully dissent. Saint Louis County made a mistake in not following the specific procedures outlined in its ordinance. While such a mistake may raise state law tort claims,1 in our view it did not violate constitutional due process. To say in this case that a possibly negligent violation of a county ordinance implicates constitutional due process is to say that whenever a county adds additional notice procedures to the minimum notice required by due process, the Constitution guarantees the county’s compliance with the additional procedures. We cannot agree with such an extension of § 1988 liability.

To assert a constitutional tort, Mr. Korn-blum must show that the County razed the house he bought from the Glendinning heirs without complying with the minimum constitutional protection guaranteed to him — not that the County violated its own ordinance. This constitutional floor requires the County to 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, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180 (1983) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)). If the names and addresses of “interested parties” are “reasonably ascertainable,” the minimum constitutional protection requires the County to provide such “[njotiee by mail or other means as certain to ensure actual notice.... ” Mennonite, 462 U.S. at 800, 103 S.Ct. at 2712. If the interested parties are unascertainable in the “due course of business,” all the Constitution requires is that the County provide notice by publication in a local paper. Mullane, 339 U.S. at 316-17, 70 S.Ct. at 657-59. Thus, Mullane and Mennonite make clear that notifying ascertainable parties by mail and unascertainable parties by publication is all the notice that due process requires.

Saint Louis County’s ordinance satisfies these constitutional requirements and also includes additional procedures that go beyond the constitutional minimum. Notably, the ordinance requires the County to file and record its notice of declaration of nuisance *666with the Recorder of Deeds. This “record notice” requirement is part of the Saint Louis County ordinance, but its fulfillment is not part of Mr. Kornblum’s constitutional guarantees under the Due Process Clause.

Given this framework, we compare the County’s actions in this case with the minimum procedures required under the Due Process Clause. The County mailed notice to Daisy Glendinning (whom the title search showed was alive) in care of the person the property tax rolls showed was her agent, and published notice in the local paper. Even though Mrs. Glendinning had in fact passed away, the County’s method was reasonably calculated to inform the persons whom the County reasonably believed owned the property. Hiring a company whose specialized business it is to conduct real estate title searches and then relying on the results of that company’s search was a method reasonably calculated to identify the owner. So too was relying on the County’s tax collector’s records for the names of people who saw to the paying of the taxes on the property. Hence, sending notice by certified mail to Mrs. Glendinning via Mr. Andrew and publishing notice in the local newspaper were, in these circumstances, methods reasonably calculated to apprise interested parties of the pendency of the action. By mailing notice to Mrs. Glendinning and publishing notice in a local newspaper, the County fulfilled its minimum constitutional requirements under the Due Process Clause.

Our court finds that the County’s means were unreasonable under these circumstances. Specifically, our court holds “that the means resorted to here to give notice to prospective purchasers did not, in the circumstances of this case, satisfy the requirements of due process.” See swpra at 663-64. We dissent from this holding on two grounds.

First, we believe the means used here were reasonable. Unreasonable means are those that are unlikely to fulfill their intended purpose, but here there was nothing wrong with the means: Conducting a title search and mailing notice to the revealed record owner was reasonably calculated to apprise all interested parties of the pendency of the action. The court’s opinion holds that “[m]ailing notice to a deceased owner is manifestly defective.” Supra at 664. It must be remembered that due process does not require a notice procedure which is perfect, i.e., one designed to positively reach every conceivable interested party. Only reasonable notice is constitutionally required. Here it was not the County’s fault that notice was sent to the deceased Mrs. Glendinning rather than to her heirs. The Glendinning heirs had not filed their probate decree when the County hired the title company to perform its search.2 Had the Glendinning heirs filed their decree promptly, the title search would have identified their ownership, the County would have notified the heirs directly, and the heirs could have taken steps to remedy the property’s defects or to warn Mr. Korn-blum about the nuisance and demolition orders. The County cannot be held at fault because the Glendinning heirs sat on their hands and failed to file the probate decree vesting them with title until after the County had sent its notice and had held its hearing, with the result being that their individual names would not be revealed by the County’s title search.

Second, and more fundamentally, we believe that the court errs in assuming that unidentifiable and unknown, future potential purchasers who have absolutely no interest in the property at the time of the hearing are constitutionally entitled to notice. We believe that to have a constitutional right to notice, a party must have an interest at stake. See Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711 (beginning its analysis by firmly establishing that the mortgagee had an interest in the property and then concluding: “Since a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale.”) (emphasis added). In this case, the unknown, future potential pur*667chaser at issue is Mr. Kornblum,3 who purchased the property in February 1988, long after the formal condemnation proceedings had concluded. Since Mr. Kornblum had no interest of any kind in the property and was not even in the picture at the time of the condemnation proceedings, no notice was due him personally of the County’s intention to demolish another’s (the Glendinning heirs’) property.

This constitutional interpretation follows from the basic principle that the due process right to notice exists as a protection of the right to contest pending state actions in a hearing; indeed, the right to a hearing would be an empty right without the right to notice. See Memphis Light Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1976) (“The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’ ”); Mullane, 339 U.S. at 314, 70 S.Ct. at 657 (stating that reasonable notice apprises parties of the pendency of the hearing and affords them an opportunity to present their objections). In this case, however, our court creates a constitutional right to notice for an entire class of unknown, future potential purchasers who themselves do not yet even know that they may be interested in buying the property and who certainly have no legal interest in the property and thus no reason to contest state action at a hearing. This result turns our jurisprudence of procedural due process on its head. Moreover, it essentially expands the Fourteenth Amendment’s guarantee that no governmental entity will “deprive any person of ... property, without due process of law” into a guarantee that all unknown, future purchasers have a constitutional right to receive record notice of all county nuisance abatement proceedings affecting everybody else’s property. We respectfully disagree with this interpretation of the due process guarantee.

Even assuming, arguendo, as our court does, that Mr. Kornblum had a right to notice as a future purchaser, Mr. Kornblum’s status as an “interested” or “affected” party at the time of the proceedings was, at the very best, that of an “unascertainable” party as described in Mullane. Thus, at the time of the proceedings, he was constitutionally entitled only to the published notice- the County gave. See Mullane, 339 U.S. at 317-18, 70 S.Ct. at 658-59.

Our court next concludes that the six-month delay between the demolition hearing and the actual demolition “contributed significantly to the unreasonableness of the notice in this case.” Supra, at 663. We cannot agree that the delay “created a foreseeable and appreciable risk [such] that [the County’s] action would affect a set of interested parties different from those whose interests were affected when the house was declared a nuisance.” Supra, at 664. The property had been vacant for over five years and was an observable safety hazard. The County had twice posted notices on the physical property, written to the record owner via Mr. Andrew, printed notices in the newspaper, and held a public hearing. After such numerous warnings and attempted contacts, the County appropriately concluded that no one was interested in the deteriorated house. Any licensed real estate broker whose business it is to speculate in dilapidated housing would certainly be aware of the potential for the razing of such structures by local government.

The County’s conclusion rested on two reasonable assumptions. First, the county reasonably assumed that the record owner knew of the pending demolition. Greene v. Lindsey, 456 U.S. 444, 451, 102 S.Ct. 1874, 1879, 72 L.Ed.2d 249 (1982) (“It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his atten-tion_”); Mullane, 339 U.S. at 316, 70 S.Ct. at 658 (“As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, ‘It is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it.’”) (alterations in original). In short, the County, by its mailed *668notice to the record owner, its publication in the local newspaper, and its double posting on the property, reasonably assumed the record owner — by the owner’s own superintendence or through the owner’s agent who was paying the property taxes — was aware of the pending action.

Second, the County could reasonably assume that the owner would pass the owner’s knowledge of the pending demolition on to a buyer, selling the property either on a warranty deed subject to the impending proceedings or by a quitclaim deed, with no warranty of marketable title. See Greene, 456 U.S. at 451, 102 S.Ct. at 1879 (stating that we must assess the constitutional sufficiency of notice “in the light of its practical application to the affairs of men as they are ordinarily conducted.”) (emphasis added and citation omitted). The fact that Mr. Kornblum received the property by warranty deed without knowledge of the condemnation may raise an issue of state real property law between him and the Glendinning heirs. It does not affect the question of whether the County complied with its constitutional obligations in the process of its condemnation proceedings. Nor does it implicate a continuing duty to conduct frequent title searches and give new notice to each subsequent record owner. See generally Mullane, 339 U.S. at 318, 70 S.Ct. at 659 (“The expense of keeping informed from day to day of substitutions among even current income beneficiaries ..., to say nothing of the far greater number of contingent beneficiaries, would impose a severe burden....”).

Because the County had the constitutional obligation to give notice conforming to the requirements of the Due Process Clause, the actual content of the County’s ordinance is not necessary to our constitutional inquiry. We must look at what actions the County took, not what local law may or may not have been followed. We may or may not all agree that the county should be held accountable in some way for not completing the extra procedures required by its ordinance, but any inaction by the County does not rise to the level of a constitutional tort because that portion of the ordinance with which the County did not comply falls outside the scope of the notice procedures explicitly guaranteed under the Constitution. See Reese v. Kennedy, 865 F.2d 186, 187 (8th Cir.1989) (“To the extent that Reese argues that appel-lees did not follow existing eviction procedures ... a due process deprivation does not occur because of an unauthorized failure of state officials to follow established state procedures.”); Myers v. Morris, 810 F.2d 1437, 1469 (8th Cir.) (“At most, the statute established guidelines to be followed as a matter of state law and neither confers nor embodies any constitutionally-protected right asserted by the plaintiffs.”), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987); Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1009 (8th Cir.1992) (“Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws.”).4 Thus, even if we agree that performing another title search within the six-month delay between the demolition hearing and the demolition would have been an ideal procedural safeguard, the Constitution imposes no such ideal requirement.5

*669The focus of our inquiry should be on whether what the County did do meets the constitutional due process requirement, not on whether what the County failed to do violates its ordinance. And it is at this point where we have a fundamental difficulty with our court’s opinion. The court expressly declines to reach the question of whether the Constitution requires record notice provisions like those contained in the ordinance at issue, supra at 663, but nonetheless holds that the County’s failure to follow such record notice provisions in its ordinance constitutes a violation of Mr. Kornblum’s constitutional rights. We are compelled to ask, respectfully, how can that be? How can a violation of an ordinance’s notice provision be declared a constitutional deprivation without first deciding whether the notice provision at issue was constitutionally required?

In order to sustain the court’s position, its opinion must be read to create one or more new constitutional duties: (1) a duty to give record notice for the benefit of parties who have no legally protected property interest; or (2) a continuing duty on the part of the County to keep itself informed of all changes in ownership and to give new notice to each new owner; or (3) a duty to give a separate, second notice to any new owners just before the wrecking crew goes to work. We believe that each one of these new duties would be an unwarranted extension of a state’s obligation under the Due Process Clause.

In short, the County did not take an important but self-imposed step before it demolished the house Mr. Kornblum had purchased from the Glendinning heirs. Failing to take that step in the County’s ordinance did not violate Mr. Kornblum’s constitutional right to procedural due process. Although the County’s mistake involved state actors, real property, and oversight of a provision in a local ordinance, this combination did not result in a section 1983 claim under the Due Process Clause. To hold otherwise is to overstep the well-defined boundaries of due process jurisprudence and to invite future litigants to file state law claims as section 1983 claims, thereby encouraging a veritable onslaught of section 1983 actions. Mr. Korn-blum can litigate his negligence, claims (or for that matter any claim he may have against the Glendinning heirs for failure to convey marketable title) in state court, but in our view he has no cognizable section 1983 claim because the County’s mistake was not a constitutional violation. We therefore respectfully dissent.

. At oral argument, Mr. Kornblum asserted he would probably have no state remedy because of the state's "sovereign immunity.” Without digressing into a lengthy discussion of the differences between sovereign immunity (governmental-proprietary test) and official immunity (discretionary-ministerial test), if the county officials’ action in forgetting to record notice was negligent and falls within their ministerial functions, they may not be immune from a lawsuit. See Hagedorn v. Adams, 854 S.W.2d 470, 476 (Mo.App.W.D.1993) (quoting Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 836 (Mo.1985) (en banc)) ("A ministerial function ... is one 'of a clerical nature which a public officer is required to perform upon' a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.’ ” (citation and quotation omitted)). Additionally, we observe that Komblum’s original complaint' included three pendent state claims, alleging trespass, abuse of process, and slander of title.

. Mrs. Glendinning died intestate on October 23, 1982. Over four years later, on January 8, 1987, the Saint Louis County Circuit Court, Probate Division, issued a decree stating the Glendinning heirs had fee simple interests in the property. The heirs had not yet filed this January 8 probate decree when First American Title prepared the title search for the County on March 24, 1987.

. Mr. Kornblum is a licensed real estate broker engaged in the business of real estate speculation, buying dwellings in a state of disrepair, then renovating and selling them at a profit.

. See generally Charles F. Abernathy, "Section 1983 and Constitutional Torts,” 77 Georgetown L.J. 1485 (1989) ("In the companion cases of Daniels v. Williams and Davidson v. Cannon, [474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677], the Court decided that neither the procedural nor substantive due process aspects of the fourteenth amendment made negligent official conduct actionable under § 1983” (quoting Daniels v. Williams, 474 U.S. 327, 331, 334, and n. 3, 106 S.Ct. 662, 666-67, and n. 3, 88 L.Ed.2d 662 (1986))).

. Ironically, the question of the timing of notice has historically been challenged from exactly the opposite standpoint, that is, on whether the notice was far enough in advance of the state action. See, e.g., Anderson Nat'l Bank v. Luckett, 321 U.S. 233, 245, 64 S.Ct. 599, 605-06, 88 L.Ed. 692 (1944) (finding notice of 6 weeks to be adequate time); North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283-84, 45 S.Ct. 491, 494-95, 69 L.Ed. 953 (1925) (finding notice of 30 days to be adequate); see also In re Gault, 387 U.S. 1, 33-34, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967) ("Notice, to comply with due process requirements, must be given sufficiently in advance of...."). Our court now finds that the notice was not close enough in proximity to the state action. Consequently, a state is now saddled with the dual concerns of giving notice not only far enough in advance of the state action, *669but also close enough to the time of the intended action. If the state must give a second notice just before the state action, must it also have a second hearing immediately prior to the action? As noted above, the notice requirement is merely a logical precursor to the constitutional right to a hearing. See supra, at 668. Further, how much time in advance is a “long time” or a "considerable time” such that the Constitution will mandate subsequent notice and a second hearing? See supra, at 664.