locate the beneficiaries of the trust, despite testimony by a City attorney that such efforts are his usual practice. Thus, the party list for mailed notices is deficient.
In Def. Ex. 27, the file for 5347 South Hermitage, the inspector appears to have photographed the back of the wrong house in making his first inspection. The house back pictured, which does not appear to be the back of the house at the address he was inspecting, has several openings that provided the basis for his finding that the house was "open" and his recommendation that the house be placed into Fast Track. Fortunately, at the second inspection the inspector photographed the back of the right house, found that there were no openings, and reported that the house was no longer eligible for Fast Track because it was secure.
The photographs from the first and second inspections for 262 North Keeler, Def. Ex. 34, show two completely different buildings. There is no indication which set of photographs depicts the real 262 North Keeler, or whether the Fast Track sign was posted at the correct address. In the file for 1210 West 110th Place (Def. Ex. 11), the recommendation form for the second inspection is marked to show that the house is vacant and open, but the photograph taken at that inspection does not support the "open" certification: no openings are either marked or visible.
The files for 10741 South Glenroy, 6642-44 South Talman, and 6934 South Wabash (Def. Exs. 25, 63 and 70 respectively), evidence worrisome lapses in correctly identifying which building is demolishable when the property has two buildings on it. In Def. Ex. 25, the overall report from the first inspection states that the property is open, but a more detailed look at the inspection forms shows that only the garage in back, not the house in front, is reported to be "open." Other inspectors and administrators do not appear to have picked up on this distinction. The second inspection also yielded an overall designation of "open," although no openings are shown in the house. Nothing in the Fast Track letters or published notice reflects that only the rear garage is subject to demolition. Unless this overly broad designation were somehow corrected, there is a substantial risk that the house would be needlessly demolished along with the garage. Similarly, the file for 6642-44 South Talman shows that at the first inspection only the garage was found to be open and was recommended for the Fast Track program. The house in front was secure. Because the second inspector seems to have focused only on the condition of the house in front, the second inspection resulted in a finding that the property was not open and a recommendation that demolition not be pursued. Finally, in Def. Ex. 70, the rear building was once again the only one found to be open at the first inspection and the only one recommended for the Fast Track program. The second inspector seems to have picked up on this, as only the rear building was photographed and posted with the Fast Track sign at the second inspection. None of the Fast Track letters or the published notice reflect that only the rear building is subject to demolition, however. While one would hope that the form eventually authorizing the demolition would be more specific, the evidence does not support such an assumption.
The error in Def. Ex. 15 is a clear one, but it was ultimately harmless due to the City's procedures for checking. The first inspection of that building, 402 North Avers, found the building to be secure. Nevertheless, it was erroneously put into the Fast Track program,
and a party list was compiled in anticipation of issuing Fast Track letters. On the second inspection, the building was once again found to be secure, so the Fast Track procedures were stopped and the building was referred to the Conservation division.
Five of the 76 files show problems that are not flat-out errors, but inconsistencies. While these types of problems by themselves are unlikely to lead to the improper destruction of property, they point up the subjective nature of City employees' determinations about whether to proceed with Fast Track, unclear or insufficient documentation of changes in a building's appearance, and the possibility of more serious error.
Several of these inconsistencies suggest that different inspectors interpret the same conditions in different ways. For instance, in Def. Ex. 10, the property was designated "open" at the second inspection, although no openings were visible or marked on the photograph (see supra note 10); the same property was found to be "secure" at the third inspection, although the photographs do not reflect any obvious changes from the second inspection. The file for 5537 South Seeley (Def. Ex. 61) is similar. The first and second inspections designate the property as open, while the third designates it as secure, but the photographs show no visible changes. For Def. Ex. 30, although both the first and second inspection reports stated that the house was open, Fast Track officials apparently believe that the house is now secure, although there is no basis for this in the file. The table submitted by the City summarizing the status of the 2/14/97 files states that this property was "Secure at 2nd inspection," and no Fast Track letters were sent out, nor was any Fast Track sign posted.
Other inconsistencies simply present puzzles. In Def. Ex. 43, the photograph taken at the first inspection shows a Fast Track sign on the door. Fast Track signs are not normally posted until the second inspection, when the City is ready to issue its other forms of notice as well. A notation on the photograph says "did not post." If the first inspector did not post the sign, who did? And if the sign comes from some earlier, aborted Fast Track effort for this property, why is there no record of that effort in the file? The last puzzle relates to Def. Ex. 75, in which an extra set of photos of the house marked "1/10/97" show that the house is boarded up, yet photos taken at the first Fast Track inspection on January 12, 1997 show that the house had not yet been boarded up. Later Fast Track inspections show the boarding. Apparently, the date on the first set is a mistake. It is also unclear whether City employees or someone else took the photos. There are no other signs of correspondence from any third party in the file.
This is the last category of irregularities that appear in the 2/14/97 files.
They are generally harmless. For instance, Def. Exs. 12, 13, 23, 32, 40 and 42 show no evidence that a second inspection was performed, although the Table provided by the City states that all of these properties were found "Secure at second inspection." Since the properties are considered secure by the City and are not presently subject to demolition, the lack of these second inspection forms and photos is presumably harmless. Nevertheless, their absence is troubling. The file for 2728 South Ridgeway (Def. Ex. 60) has an inspection form from the second inspection marked "secure" but the photos attached to it are from the first inspection. That file, and Def. Ex. 14, are also missing any party list, although copies of the title search are in the file. In the case of Def. Ex. 14, letters appear to have been prepared and sent to everyone with a legal interest in the building. The last incomplete file, Def. Ex. 73, shows no first inspection, so the basis for the decision to begin the administrative title and tax search process is unclear.
A careful review of the 2/14/97 files shows that a total of at least 28 of 76 files were flawed in some way, whether by missing documentation, inconsistent Fast Track decisions, or plain mistakes. The City states that it either found or would have found five of these errors itself. While many of these flaws were harmless, as the City eventually decided not to pursue demolition for many properties in this group, at least seven serious flaws (apart from the ones caught by the City) appear in files where the City is currently seeking demolition of the house.
Last 25 Properties Demolished in 1996
For the purposes of presenting evidence relevant to the motion for a preliminary injunction, the parties have submitted a second group of files as well: the files for the last 25 demolitions authorized through Fast Track in 1996. We have carefully reviewed these files in the same manner as the 2/14/97 files. Out of a total of 25 files, we found two files (Def. Exs. 87, 95) with errors, both of which must be categorized as serious errors in the notification process. In both cases, the attorney compiling the party list failed to contact a listed trustee for the names and addresses of the land trust's beneficiaries. These omissions may well have led to those with a beneficial interest in the property not receiving one of the required forms of notice--the Fast Track letter. No other errors appeared in this group of files.
In order to prevail on their motion for preliminary injunction, the plaintiffs must show (a) some likelihood of prevailing on the merits, and (b) an inadequate remedy at law and irreparable harm if the preliminary injunction were denied. Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1291 (7th Cir. 1996). At the preliminary injunction stage, plaintiffs meet the first test if they have a "better than negligible" chance of success on the merits. Int'l Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th Cir. 1988). If the plaintiffs can meet these first two tests, the court must then consider the balance of harms, i.e., the irreparable harm the nonmovant would suffer if the preliminary injunction were granted balanced against the irreparable harm to the movant if relief is denied, and the public interest, meaning the effect that granting or denying the injunction will have on nonparties. Grossbaum, 100 F.3d at 1291.
I. LIKELIHOOD OF SUCCESS ON THE MERITS
The first and most important element of a preliminary injunction is the likelihood of success on the merits. "If it is clear that the [movant] has no case on the merits, the injunction should be refused regardless of the balance of harms." Green River Bottling Co. v. Green River Corp., 997 F.2d 359, 361 (7th Cir. 1993). Because this element depends on the particular claims being advanced, we evaluate the support for each of the plaintiffs' claims separately.
A. Procedural Due Process - Facial Challenge
The Due Process clause of the United States constitution provides: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const., art. XIV § 1. "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" Fuentes v. Shevin, 407 U.S. 67, 80, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972) (quoting Baldwin v. Hale, 68 U.S. 223, 1 Wall. 223, 233, 17 L. Ed. 531 (1863)). There are some refinements to this "notice and an opportunity to be heard" requirement.
First, as pointed out by the above language from Fuentes, the notice given must alert the recipient to his right to a hearing, as well as to the potential deprivation. Second, the timing and type of hearing that must be provided depends on the nature of the deprivation and other contextual facts. Ordinarily, a hearing should be held before the deprivation occurs. "If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented." 407 U.S. at 81. Although there are exceptions to this rule when the deprivation is "random and unauthorized," Parratt v. Taylor, 451 U.S. 527, 541, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), or when "truly unusual" situations exist, Fuentes, 407 U.S. at 90-91, there is no argument that such exceptions apply to the Fast Track demolition system. Rather, the City contends that the Ordinance provides adequate pre-deprivation remedies. The plaintiffs claim that the Fast Track scheme as set up by the Ordinance provides constitutionally inadequate notice and opportunity to be heard.
The notice prong of procedural due process requires that the government provide notice that is "reasonably calculated to inform" interested parties about the intended deprivation and the opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). The notice must be "such as one desirous of actually informing the [interested parties] might reasonably adopt to accomplish it." Id. at 315.
The Ordinance envisions three forms of notice: a sign posted on the front of the building to be demolished; letters sent to "all owners of record"; and a notice published for three consecutive days in "a newspaper published in the city of Chicago." The letters and the publication notice are to issue within 30 days after the posting of the sign. Each form of notice is to state "(i) the address of the building or description of the real estate sufficient for its identification, (ii) a statement that the property is open and vacant and a continuing hazard to the community, and (iii) a statement that the department of buildings intends to demolish, repair, or enclose the building, or remove any garbage, debris, or other hazardous, noxious, or unhealthy substances or materials if the owner or owners fail to do so." Chicago Mun. Code § 13-9-010(A)(2).
The only defect plaintiffs identify that is inherent in this statutory notification scheme (as opposed to defects in the way the scheme is carried out) is that the publication notice lists the properties subject to demolition by their addresses only, not by the owners' names. There is no constitutional requirement that publication notice contain the names of interested parties, however. The sole case the plaintiffs cite, Schroeder v. City of New York, 371 U.S. 208, 9 L. Ed. 2d 255, 83 S. Ct. 279 (1962), does not stretch far enough to support their argument. In that case, the Supreme Court held that notice by publication was constitutionally insufficient when the property owners' names and addresses were either known or easily ascertainable, so that individual notice by mail could have been provided. Of course, publication notice is to be regarded as a last resort that may not take the place of other more personalized notice where the identities of interested persons are known. Here, however, the City does not use publication notice as its only or even primary means of communicating the possibility of demolition to property owners. Instead publication notice is clearly a backup to two other means of communication that are more likely to reach the property owners. Thus, Schroeder is inapplicable. Nor do we think that the marginal possibility that a property owners' eyes would be caught by his name but not by the address of his property is of constitutional magnitude. We preliminarily find that, at least on its face, there is nothing constitutionally wrong with the system of notice established by the Ordinance.
No automatic pre-deprivation hearing is afforded by the Ordinance. Instead, the Ordinance places the burden on citizens who wish to contest the demolition of their property to file an "objection in an appropriate form in a court of competent jurisdiction." Chicago Mun. Code § 13-9-010(A). For purposes of this motion, the parties have assumed that this provision requires the filing of a civil lawsuit in the Circuit Court of Cook County, Illinois. Neither the Ordinance nor (as far as we are aware) any other statute or rule creates an exception to the fee normally charged for filing such a lawsuit, which at last inquiry was $ 220.00.
No one disputes that the type of judicial hearing available in the Circuit Court, with all the rights normally attendant to a civil lawsuit, provides property owners with substantial protections. The plaintiffs argue, however, that requiring a property owner to bear the burden and expense of suing the City in a civil suit in order to get a hearing on whether or not his property should be destroyed is unfair and constitutionally suspect. Although there is not much case law on this topic, the cases that exist are thoughtfully reasoned and provide persuasive support for the plaintiffs' position. One of the few cases challenging an analogous scheme is McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1971), which involved a New York City ordinance requiring ex-arrestees to sue the city in order to get back personal property from the police property clerk. The original deprivation had been constitutional, as the items were at least initially considered to be necessary to the pending criminal cases. The question was whether the ordinance's procedure for eventually getting the property back--suing the city--was constitutional.
The Second Circuit held that the ordinance was fatally deficient under the Due Process clause without completely spelling out its grounds, but condemning the requirement that citizens bring suit, especially as it resulted in shifting the normal burden of proof from the City (to show why it should be allowed to retain the property) to the citizen plaintiffs (to show why they should get their property back). Id., 460 F.2d at 115. Upon remand, the district court clarified the applicable law in this area of due process. First, the court noted that "it is rarely appropriate to require an individual to bring a . . . suit . . . to obtain a constitutionally guaranteed hearing" to protect his property rights. McClendon v. Rosetti, 369 F. Supp. 1391, 1393 (S.D.N.Y. 1974). The court went on to note that, in practical terms,
plaintiffs here and members of their class [arrestees] are generally likely to fall within the group described by the Fuentes Court as "uneducated, uninformed consumer[s] with little access to legal help and little familiarity with legal procedures." 407 U.S. at 83 n.13. Nothing in the Court of Appeals' opinion leads us to believe that the court intended to impose the burden of initiating litigation on persons with such practical disabilities; to say nothing of the added obstacle which apprehension of suing the City or police officials might constitute to people so situated.