Shoemaker v. City of Howell, No. 13-2535 (6th Cir. July 29, 2015).
Different regions of the United States have different names for potato bugs, soda pop, and drinking fountains. They also have different names for that planted zone between the sidewalk and the street. In this part of the country, we usually call it a “parking strip.” Other places call it a “curb strip,” “curb lawn,” “berm,” “sidewalk lawn,” or even—oddly enough—a “devil strip.”
This case is about the parking strip in front of David Shoemaker’s house. Shoemaker was required by a Howell, Michigan ordinance to keep his parking strip mowed below eight inches in height. He refused to do so. The city hired a contractor to do it for him and then charged Shoemaker $600, a sum that represented both a fine and the cost of hiring somebody else to mow the lawn. Shoemaker sued the city for violations of procedural and substantive due process.
The Sixth Circuit decides that Howell didn’t violate Shoemaker’s right to procedural due process because it notified him six times that he was violating the lawn ordinance, and because Shoemaker could have objected to the charges before a city of board of review and then could have challenged that board’s decision in Michigan state court. Similarly, the ordinance doesn’t impair any fundamental right and has a rational basis, so it doesn’t violate substantive due process. Shoemaker—comparing the Howell ordinance to North Korean forced labor—claims that he was forced to keep up city-owned property. The Sixth Circuit disagrees. Under Michigan law, Shoemaker shared ownership of the strip with the city.
Judge Clay dissents. He emphasizes that, while Howell informed Shoemaker of his violation, it didn’t tell him about how to challenge that violation. How, he asks, can that comport with procedural due process? It’s a fair question.