Due process cases are not fun anymore

Due process claims are not what they used to be. Back in the 1970s, a very different Supreme Court was breathing life into the due process clause with new rulings that clarified when and how the government could fairly take away your property and liberty interests. People called it the due process revolution. But it's not 1973 anymore.

The case is Chase Group Alliance LLC v. City of New York, decided on September 14. Here is the problem with due process cases. Due process is all about the right to be heard before the government takes your property or liberty interest. But few lawsuits are allowed to proceed under the due process clause because there is usually a built-in mechanism for you to be heard when you're about to lose the property interest. In other words, the due process clause today is enforced through laws and regulations that the government has to follow before it takes your property. The lawsuit is often dismissed because, by that point, you already had your due process. The lawsuit is redundant.

This case shows us how it works. The plaintiff owns properties in New York City. The tenants complained to the city about housing code violations. The City Housing Court has various procedures to follow. Among other things, an administrator is assigned to oversee the dispute, and he has authority to collect and use rents to remedy the code violations by, for example, ordering supplies and labor. The administrator can also take out a loan for this work, and that loan would place a lien on the property. This is where the plaintiff objected under the due process clause. The landlords claim that the administrator deprived them of their property interest without due process when he took out a loan in excess of $700,000, all of which the City deemed as a lien against the property. The landlords sued in federal court, claiming this lien violated due process.

The case cannot get out of the starting gate. It is dismissed under Rule 12(b)(6). The administrator cannot take out those loans and place the lien on the property without a state-court order. That court order cannot issue without notice to the landlord. Due process is nothing more than notice and an opportunity to be heard before your property is taken away. The landlords got due process long before the lawsuit was filed. They got due process when the state court issued the procedure that allowed the landlords an opportunity to be heard. As the Court of Appeals (Winter, Walker and Pooler) sums up, "It is hard to conceive of a remedy more attuned to appellants' claim than a court order preventing the imposition of a lien without a notice, hearing, and court approval. Indeed, such an order is much of the relief they seek in the present action. The Housing Court order, therefore, provided all the process that was constitutionally due at pertinent times." So plaintiffs got their due process, built into the initial lien process. That means they cannot sue under Section 1983 for relief in federal court. This is why due process cases aren't fun anymore.