good morning may it please the court of joseph abboud appearing on behalf of the defendant appellant city of lansing in code compliance officers i write your hearing today for the city of lansing i didn't think the city of atlanta appealed i'm appearing on behalf of all the defendants but you're correct the code the qualified immunity issues are the preeminent issues for your consideration they're the only issues are they are they not in the electorate peel of the dog aisle of qualified immunity to the individual it is that's correct your honor but also we believe that there is an augmentation of our argument that there was no constitutional deprivation i think it would apply to all the defendants for your consideration well ok i mean i look at your claim of appeal in that case i didn't see the claim of appeal directed us to the city of lansing i saw just as to the individuals as to the pilot and i wrong no your honor that's correct and i mean our normal rule is in a locked tory appeals we we don't have jurisdiction but we have an exception for qualified immunity cases as long as there's no dispute facts it's just a legal question i don't dispute that it ok all right so let's talk about qualified immunity than order to to state a claim for violation of procedural due process under one thousand section one nine hundred eighty three the plaintiffs much show that they were deprived of liberty or property interest and plaintiffs here have fashioned their case as the deprivation of a property of a significant property interest i just it was the red tag i noticed immediately quit i didn't quite understand how it works or could the tenant procedure for your consideration in this case or other tags but the red tag procedure is that there is a finding that the property is a nuisance per se by law and therefore for the health safety  welfare of the people no occupancy can be that's what i understood yes thank you and that goes right to this point here that it's a longstanding principle of law as you this court well knows and it goes back at least to the eight hundred eighty seven case of mugler versus kansas that no property owner has a compensable property interest in a nuisance in fact and that's what the red taking procedure does process well and quite frankly the appeal process is necessary to be able to contest that or i'm to have the landowners it's in the process is necessary under the fourteenth amendment but but in about and what the assertion here you're on is for your consideration is that that is the red herring procedure is an enforcement of the obligation on the property owners all these plaintiffs to abate the nuisance and these folks with a tenants or owners they were owners and some of them actually resided in the property it's my understanding so so you have both but a residence as well as property and maybe i missed this i thought that the focus of the contention was on the adequacy of the notice of the right to appeal and can only once again when i read their brief i said come on now it's not you know being told that you have a right to appeal going to questions call a number of callers but it's also my understanding that the problem he has to me is it seems to me that the law says oh yeah it is that's sufficient to put you on notice that if you want to challenge the action of the state action that's the process and that is all that's necessary to alert the subject of the state action that they can contest and that's absolutely correct here and quite frankly this court this year in shoemaker versus the city of howell expressed those points and they followed up on silver nail they followed up on the progeny of cases that we've briefed and laid out before you that this sufficient that the notice provided here the phone number of the individual to call along with the posting of all the information in the world wide web the internet which is the gold standard today for the dissemination acquisition of information as well as all the information being available at the clerk's office for the city of lansing and as you you the first one is the flag for the court and is the other flag for decision is distinguishable from these facts because in the flat for court no notice was provided whatsoever so flat for it stands for the general proposition that if there is no process it's a violation of the fourteenth amendment clear general rule not contested no notice was provided in that case here notice was provided secondly flat for notice here was just oh phone number all if you had questions it wasn't notice of rights to appeal and in our court of flight for say that that notice of the rights to appeal must be afforded yes notice notice has to be afforded the process has to be afforded and in this case given silver nail and the progeny of other cases that a phone number and an individual to call for further questions even though it doesn't mention the appellate process specifically is official notice and it gives the opportunity to be heard and so it satisfies the due process requirements and i think this is exemplified in amplified in the shoemaker case the recently decided to make your case the second thing your honor that flat for did not discuss or or determine was in their rationale or reasoning was the fact that the city of  these policies published and printed the appellate print process of procedure was published and printed and available to the public and that the flag for court never even considered that and i think that's a significant consideration and therefore i think that distinguishes flak for it makes it an outlier in the landscape of the state of the law for the due process of analysis and is undermined not just by the recent case and in shoemaker but at that time by silver nail by memphis light by the southern circuit case in horn by heredia versus detroit six circuit case all these cases show that the notice provided here was formed officer would have should have known about its cost to snog ations eyed i'm feeding your next argument obviously and clearly if you read all these cases at the very least she says why don't all you know i guess this is clearly not beyond debate for our line officers our code compliance officers to take them to look at the notices provided by the city of lansing and say hey this is a clear violation of the law if you look at silver if you look at the case law clearly this is not beyond debate there was a vibrant debate over what process it is do given these cases that were existing at the time this further it becomes amplified and makes quite frankly your honor i think if it's in the eye of the beholder then it is not beyond debate it's my position but i appreciate that the the other thing that i think the shoemaker has bring out the final point and i just do this briefly is that the plaintiffs had an obligation under to contest this and under the article six section twenty eight of the michigan constitution there is a process where they can appeal all of these things for go right to the state circuit court for judicial review that was not done and schumaker the shoemaker court indicated that if you do not pursue these things you lose your right to it due process claim even if in fact there was a violation of due process for all these reasons we believe that the underlying indicated as indicated in a brief and i think it only stay i think that i think the lower court reached too far i think it only stands for the general proposition that without any process which was the case in flight if there's ever language broader than that right about providing notice i don't believe it does i think the lower court expanded on it too to assert the requirement of actual notice but the flag for court did not give that holding all right thank you thank but for decision in front of me if you know we're talks about providing notice what i won't be able to give you the page i'm sorry good morning hours may it please the court nick bostic on behalf of the plaintiffs  i won't get be able to give you the page cite but i do recall reading that just this morning in the court the panel say about that precisely it gave the owner notice of the prohibition on use the requirement to comply with the specific deficiencies listed and the notice of the appeal process what did it say what was it what were the exact words i don't think the opinion quoted there was a sentence where they were paraphrasing what was on the notice  the issue was the fact that the occupants of the tenants received nothing and that is how to me they tried to distinguish wait for it in their ways and deficiency in whatever was was told about the right to challenge the owner probably was the failure to see to it that the person with a stake in making a challenge flyover it cites to the ordinance and it requires notice to the owner occupants and others holding it an interest notice of what of the right to appeal and the existence of the you can't use the property in addressing the arguments that were just made i completely disagree that the red tag equals a declaration of a nuisance per se i think this court here in this panel is well aware that a line officer in a code compliance office doesn't have the authority you know that a crook declaration i was a little startled by that i knew nuisance per say agree with you on that wait a minute i'm building specter can go in and shut the premises down so move by fixing the label nuisance and again i think we have to look at the overall circumstances here you have a search warrant a crack house or at least some parent crack house or drug activity and i gather the practice or at least in the cases the clients you're representing they call up and take  c'mon over and in effect help us out i mean this is all part of the city's effort to shut down crack houses we'll get into that a lot more when we come back on the fourth amendment claims ok absolutely i understand but i'm saying that i agree with you that simply the word nuisance getting thrown in there when apparently also some of the code violations are relatively trivial and relatively easily easily fixable within minutes some of them ok so this argument that they've presented today that there's no property interest and a nuisance my recollection is it was not raised in the lower court and it was not briefed i don't think it was either so i'm but i anyway that the nuisance per se i mean it's a term of art and i understand i'm saying and that issue aside i'm concerned this point went ok and  on our own occupants but also some of them were tenants he was a tenant and apparently some sort of a holdover status the landlord could pay in the mortgage and it was whatever but the the property at all relates to the interest factors we have a as heavy of a and of an interest on a private interest as you can get which brings me i do want to talk about some factual disputes but i don't want to get into the record i mean i know you've you're familiar with it but because i think the factual disputes and the and our denial of there some of their claims as to what code violations existed plays into that first man through matthew's re elbridge factor about the risk of an excuse me officer reason well trained informed experience etc have known about his or her obligations to provide notice and it really wasn't somewhat unsettled and open to debate in light of the subsequent decisions whether or not they in fact overruled or not we as is an officer charged with that parsing and to the point saying well the court has now said this that this is ok look like it says it's ok but that i don't that is meaningless because that panel couldn't overrule an earlier panel it says it's not ok i mean is that i'll start with a subjective point and then is the characteristics of my plaintiffs my clients and that's why i cited so extensively goldberg versus kelly these people do not have the wherewithal the education or the money and these code compliance officers know exactly what they're doing the police have just raided the building whether or not they know who actually caused the damage that's a dispute for another time but it's possible that they know if they don't they should know also the computers may have been seasoned crackles so the internet access goes out the window yes ok because if they have a computer if they're computer savvy i mean the so the the people with children have c p s knocking on their door or show up and take their children away they're not asking about they're not worried about going to the code compliance tomorrow morning or to clerk's office and finding this appeal process they're worried about their children many of them are in jail and most of the time they're using city cordoned city code violations frequenting a drug house or disorderly conduct so in that scenario the code compliance officers have a heightened obligation probably not in a constitutional sense but in a subjective sense they're not working in a vacuum now that's i'd like to discuss over male versus can't counting the bad check notices clearly the panel said that you know the phone number and the name that's good enough but an issue there was a twenty five dollars late fee the actual judicial determination had not yet occurred the actual deprivation had not yet occurred horn versus city chicago and geraldo versus detroit of parking or was violation cases you getting a delinquent notice and and it's going up and this you all this and i don't get distracted by the misleading nature of the notices and that the point was those people had not shown hot in court they had not answered their citations and if i was reading those cases correctly the judicial determination of a deprivation had still not either and still not occurred or it wasn't final so those three cases  procedures and does its own state system or deviates from the state procedures that they must give a specific notice as to their procedures and what they were saying was that there w there was a system of challenge and appeal or to contest what was going on built end of a state law there's a process in place state law right and so the even if the phone number and the name hadn't been on the notice that state law procedure existed and well here you've got a city ordinance don't you mean that's you know state law you get a city law what's the difference there well and that brings me up to what he said about the michigan constitution would give a supplemental brief you want to but my position is we have cases in michigan it says our administrative procedures act which allows you to challenge something and or go to circuit court does not apply to misapply decisions that's for state boards and agency decisions so that process is now you can a city can cause that to apply but that's not what we have here so back to but i do want to address whether this this availability whatever it is because i mean i'm conceding that the appeal process exists and it's in the books and it's sitting at the state city hall i'm conceding that whether you can find it or not  no it's not on the internet well let me back up it was on the internet at the time the problem that we have is and this is where we made first mistakes in the lower court primarily in the whole suggest before they got consolidated we gave george yonkers language that wasn't accurate because the city adopted the two thousand nine in or national property maintenance code in two thousand and twelve and the whole process changed as of two thousand and twelve when they adopted it the adoptive ordinance didn't bring that was subsequent to our case because it specifically women to its holding to situations where the procedure was published in a statewide process and was state i was in why does it make any difference if it's published statewide or published well the internet as world wide for one thing but whether it applies to a city or applies to a state why should that make a difference because there are so many different cities there are so many different as palin these and in this particular case the city of lansing took the requirement that the appeal rights be included in the notice they took it out it was they took it out so you you go looking at i if it's ok if the notice were state wide you say well that's fine but if it's only city wide it's not going to be constitutional i don't see why that distinction makes sense and also we're room to officers where they have an open mind often wouldn't fact really read something said would he then know that this notice was not enough going to questions cause i think when you weigh the interest of the private entity versus the additional stop of simply giving the notice of the appeal process under the master's versus eldri factors and the acknowledgement by these code officers that when asked directly never refer people to the appeal process that we went  you asked a couple of questions initially about the flag for a case in the room the extent of the i found the you know the one sixty nine moreover fundamental fairness requires notice in short order of the right of the appellate rights is required that's correct your honor that process is required in this case in flat for tim i'm sorry i'm looking at a print off here and it's not giving me the exact page names but it does state in that's holding that we that for the problem here both those in acts complete failure to provide any notice which is so essential where there is significant r aspect of my argument however there is no contention here that there is no dispute here that all of the tenants and property am i right i i don't know if i would phrase it exactly that way your honor what i'm saying what i think we're saying is is that the opportunity for a notice of the appeal process factual dispute about what happens when you do ask ok but i think for me the real question is what is the effect of the city of core vyner case in terms  of calling into question flattered because platform center itself does seem to me to say you didn't do the job you had to constitutionally go home but judge griffin has said wait a minute there's a distinguish life or limit its ruling and i think confines it to its general principle that that process has to be provided to avoid a violation of the fourteenth amendment and w we're arguing here and what was argued in covina what was argued and silver nail well was subsequently argued and and held in shoemaker this year was that the notice that was provided by the city of lansing on the red tag process was sufficient notice of the right to appeal i mean i can i think your answer to judge matsch others have been yes judge that is our position because that's how i read the briefs they were told always needed to be told and about their right to appeal rather then you know told what they need to be told go find out about the right to they i mean with that i agree that that the notice that was provided was sufficient under the law and was not so clearly beyond the debate to deny the qualified immunity to these individual line officers the further questions thank you gentlem