                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0403n.06

                                            No. 10-2222

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Apr 13, 2012
DAVID KLEIN; ALL                   BROTHERS       )
INVESTMENT, LLC,                                  )                       LEONARD GREEN, Clerk
                                                  )
          Plaintiffs-Appellants,                  )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
v.                                                )   EASTERN DISTRICT OF MICHIGAN
                                                  )
CITY OF JACKSON,                                  )
                                                  )
          Defendant-Appellee.                     )



          Before: MARTIN, COOK, and KETHLEDGE, Circuit Judges.


          COOK, Circuit Judge. Defendant-Appellee the City of Jackson (“City”) created the Jackson

Administrative Hearings Bureau (“Hearings Bureau”) to adjudicate violations of the City’s blight

ordinances. David Klein and All Brothers Investments, LLC, appeal the district court’s dismissal

of their challenge to that system, brought under 42 U.S.C. § 1983, which claimed that the Hearings

Bureau violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We

affirm.


                                                 I.


          Plaintiffs came within the Hearings Bureau’s authority after a city official caught them

renovating commercial property without the required building permits. The official cited All
No. 10-2222
Klein & All Bros. Investments, Inc. v. City of Jackson


Brothers for three permit violations, informed them of a hearing date before the Hearings Bureau,

and ordered them to cease construction until they secured a permit. Plaintiffs do not deny that they

violated the City’s permit requirements; rather, they challenge the authority and neutrality of the

Hearings Bureau that adjudicated their violations.


       A Michigan statute and a city ordinance establish the Hearings Bureau’s jurisdiction and

frame its procedures. Michigan law permits cities to establish an “administrative hearings bureau”

to adjudicate violations of city ordinances deemed “blight violations.” Mich. Comp. Laws § 117.4q;

see also id. §§ 117.4l, 117.4r. The same law prescribes the Bureau’s hearing procedures, mandating

procedural protections such as the right to appeal. Id. § 117.4q(17)-(19). To increase compliance

and more efficiently adjudicate blight violations, the City created its own Hearings Bureau in 2005.

See Jackson, Mich., Code of Ordinances pt. II, ch. 2.5 (“Jackson Ordinance”), art. I, § 2.5-1.


       The Hearings Bureau’s design is typical of similar administrative schemes.                  An

“administrative hearing officer” heads the Hearings Bureau and determines liability. Id. art. II, §§

2.5-11, -19. A city ordinance entitles respondents to a hearing before this officer, the choice to have

legal counsel present, the ability to subpoena documents and witnesses, and the ability to present and

cross-examine witnesses. See id., art. II, § 2.5-19; see also Mich. Comp. Laws § 117.4q(14). The

Hearings Bureau can assess only limited fines, and a respondent may appeal its decision. See Mich.

Comp. Laws § 117.4q(3); Jackson Ordinance art. II, § 2.5-19(l)-(m), art. III, § 2.5-53.




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Klein & All Bros. Investments, Inc. v. City of Jackson


        All Brothers’ experience with the Hearings Bureau ran an unusual course, largely because

of its apparent unwillingness to participate in a hearing. After citing All Brothers for three permit

violations in 2008, a city official notified it of a hearing date at which it could contest the violations.

When All Brothers failed to appear at the hearing, the Hearings Bureau entered default judgment

against the company and scheduled another hearing at which it could contest the default judgment.

The day before the default-judgment hearing, All Brothers’ attorney filed a notice of appearance and

obtained an order setting aside the entry of default. All Brothers then went about procuring the

necessary permits to continue work on its property.


        All Brothers’ adherence to the City’s permit requirements was short lived. While waiting

for approval of its building permits, All Brothers resumed construction. The Chief Building Official

learned of All Brothers’ renewed noncompliance and issued four new citations. The Hearings

Bureau scheduled a third hearing for All Brothers, which now faced seven violations instead of three.

The day before the hearing, counsel for All Brothers and Klein notified the Hearings Bureau that his

clients had directed him not to attend the upcoming hearing. The hearing proceeded in All Brothers’

absence, and the Hearings Bureau entered judgments against the company in the amount of

$1,011.76 for the first three violations and $1,432.34 for the latter four.


        After the time for appealing these judgments expired, the City sent several letters to All

Brothers and Klein, All Brothers’ organizer, seeking to collect the fines. The letters, addressed to

All Brothers and directed to Klein’s attention, advised (1) that the judgments had been recorded with



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Klein & All Bros. Investments, Inc. v. City of Jackson


the Register of Deeds, creating liens against the property that All Brothers could remove by paying;

(2) that the City could initiate contempt proceedings against Klein and All Brothers, which could

result in up to 90 days’ incarceration; and (3) that the City would send the judgments to a collections

agency if All Brothers failed to respond by December 10, 2009.


       On December 1, 2009, plaintiffs filed a complaint against the City raising two § 1983 claims

alleging violations of the Due Process and Equal Protection Clauses. The City moved to dismiss the

complaint or, in the alternative, to grant summary judgment, which the district court treated as a

summary judgment motion. The district court granted the motion, dismissing both § 1983 claims

with prejudice.


                                                  II.


       On appeal, plaintiffs renew their assertions that (1) the Hearings Bureau’s procedures violate

the Due Process Clause; (2) the City violated Klein’s due process rights by threatening him with

incarceration; and (3) the City arbitrarily and discriminatorily enforced its building code against All

Brothers in violation of the Equal Protection Clause.


       We review a grant of summary judgment de novo. See Ciminillo v. Streicher, 434 F.3d 461,

464 (6th Cir. 2006). We view the record in the light most favorable to the nonmoving party and

affirm the grant of summary judgment only “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

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Klein & All Bros. Investments, Inc. v. City of Jackson


A. Due Process Claims


        Plaintiffs argue that the City violated their due process rights in two ways. First, they allege

that the Hearings Bureau’s bias toward the City violates due process. Second, they allege that the

City denied Klein due process by threatening to incarcerate him for failing to comply with the

Hearings Bureau’s order, despite the fact that he was not a party to the proceeding before the

Hearings Bureau. Both arguments fail.


        We first address plaintiffs’ argument that the partiality of the Hearings Bureau toward the

City deprived them of due process. Plaintiffs fault the Hearings Bureau for “the failure to provide

a neutral, authorized actual court, the failure to separate the executive administrative, and

investigative functions with the judicial function, and the failure to provide a neutral judge to

determine the proceedings, whose tenure and pay was not dependent on the levying of fines.” Their

legal argument on this point lacks precision, but plaintiffs’ factual allegations amount to a claim that

the Hearings Bureau’s affiliation with the City causes it to favor the City in citation disputes by

ruling in the City’s favor and assessing large fines against respondents. On appeal, plaintiffs cite

twenty-three aspects of the Hearings Bureau as evidence of its partiality. These include allegations

that (1) the City funds the Hearings Bureau and pays its hearings officer with the fines that it

imposes; (2) the Hearings Bureau is located within Jackson City Hall; (3) the City enjoys procedural

advantages when appearing before the Hearings Bureau, such as the ability to remove cases and

impunity for wrongly bringing cases; (4) the City selects the hearing officer and can only remove him



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Klein & All Bros. Investments, Inc. v. City of Jackson


for cause; and (5) the Hearings Bureau does not charge the City a filing fee and has never fined the

City for a violation.


        At the threshold, we readily agree with plaintiffs that “[a] fair trial in a fair tribunal is a basic

requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). A trial in which the

presiding judge has a strong interest in the outcome fails to satisfy this requirement, a principle

illustrated by a set of Supreme Court cases involving “Mayor’s Courts.” See, e.g., Tumey v. Ohio,

273 U.S. 510, 523 (1927) (holding that a mayor’s court violated due process, largely on the ground

that the judge held “a direct, personal, substantial pecuniary interest” in the costs that he received

from convictions); Ward v. Vill. of Monroeville, 409 U.S. 57, 60 (1972) (holding that a mayor’s court

denied due process on the ground that the mayor’s “executive responsibilities for village finances”

created a “possible temptation” to convict defendants).


        But the Hearings Bureau does not present the concerns raised in Ward and Tumey. Unlike

the adjudicator’s pay in Tumey, 273 U.S. at 520, the hearing officer’s pay does not depend on

assessing fines against respondents, nor does the City pay the officer a portion of the fines she

imposes. Rather, those penalized by the Hearings Bureau pay fines to the City clerk, and the City

pays hearing officers an hourly wage set by city ordinance. Jackson Ordinance art. II, §§ 2.5-28, -11;

id., ch. 2, art. III, § 2-424. Further, plaintiffs present no evidence to suggest that the City requires

the hearing officer to meet a quota of fines or guilty verdicts to retain her position or salary level.

The mayor, subject to the approval of the city council, appoints hearing officers for two-year terms,



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Klein & All Bros. Investments, Inc. v. City of Jackson


and the City may remove hearing officers only for “reasonable cause.” Id., ch. 2.5, art. II, § 2.5-11.

Finally, unlike the mayor in Ward, the Hearings Bureau’s hearing officer possesses no executive

authority and faces no pressure to support the City’s fisc by imposing fines. See Ward, 409 U.S. at

60; Van Harken v. City of Chicago, 103 F.3d 1346, 1353 (7th Cir. 1997) (distinguishing Ward on

similar grounds).


       Nor do the Hearings Bureau’s procedures present the “extraordinary situation” in which an

indirect stake in the outcome of a hearing compromises the hearing officer’s neutrality. See, e.g.,

Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2259, 2263-65 (2009) (holding that due process

requires recusal in the “extraordinary situation” that presents “serious risk of actual bias”). The

remainder of plaintiffs’ claims—for example, the location of the Hearings Bureau within Jackson

City Hall, the fact that the hearing officer formerly worked alongside the City’s prosecuting attorney,

and the indirect pressure on the hearing officer to credit the testimony of the City’s building

inspectors with whom the hearing officer frequently interacts—fail to demonstrate a “serious risk

of actual bias” sufficient to violate due process. Id. at 2259; see also Tumey, 273 U.S. at 523

(holding that “matters of kinship, personal bias, state policy, remoteness of interest would seem

generally to be matters merely of legislative discretion”).


       As part of their due process claim, plaintiffs also allege that state law bars the Hearings

Bureau from adjudicating building-permit violations. We reject this argument as well. Nothing in

the Due Process Clause prevents municipalities from adjudicating civil violations through



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Klein & All Bros. Investments, Inc. v. City of Jackson


administrative schemes like the Hearings Bureau. See, e.g., Gardner v. City of Columbus, Ohio, 841

F.2d 1272, 1278-79 (6th Cir. 1988) (rejecting a due process challenge to a similar city ordinance,

which assigned the adjudication of parking infractions to an administrative body); see also Van

Harken, 103 F.3d at 1350-51 (same). Moreover, the district court found that plaintiffs forfeited this

argument, noting that they failed to include it in their complaint or develop the legal argument in

their brief. We agree, and find that they also fail to develop a legal argument supporting their

constitutional claim on appeal. We therefore deem it forfeited. See United States v. Layne, 192 F.3d

556, 566 (6th Cir. 1999) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.”).


       Last, we are unpersuaded by Klein’s charge that the City denied him due process by

threatening him with incarceration despite his status as a nonparty to the blight proceeding. As the

district court correctly pointed out, Klein fails to allege that the City incarcerated him or otherwise

deprived him of a “life, liberty, or property interest” protected by the Due Process Clause.

Wedgewood Ltd. P’ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th Cir. 2010). Absent a

showing of such a deprivation, this argument fails.


B. Equal Protection Claim


       Plaintiffs’ equal protection claim fares no better. The Equal Protection Clause provides that

no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. Plaintiffs allege that the City violated the Equal Protection Clause by


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Klein & All Bros. Investments, Inc. v. City of Jackson


arbitrarily and discriminatorily enforcing the City’s building code against them. While the typical

equal-protection plaintiff alleges discrimination based on membership in a protected class, a plaintiff

can proceed as a “class of one” by establishing that he “has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in treatment.” Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).


        A class-of-one claim requires two steps. First, a plaintiff must demonstrate disparate

treatment. See Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006);

Schellenberg v. Twp. of Bingham, 436 F. App’x 587, 591-92 (6th Cir. 2011). Once a plaintiff shows

disparate treatment, he must next demonstrate the lack of a rational basis for the challenged action.

See Warren v. City of Athens, Ohio, 411 F.3d 697, 710-711 (6th Cir. 2005).


        We need not reach the second step of this analysis because, as the district court correctly

found, plaintiffs fail to present evidence of disparate treatment. The whole of plaintiffs’ evidentiary

showing on this point consists of several photographs of disheveled-looking properties in

Jackson—including a lot owned by the City—which plaintiffs contrast with a photograph of All

Brothers’ relatively neat property. This evidence might be convincing if plaintiffs challenged the

City’s enforcement of a restriction on storing waste or building materials, but the City issued the

violations in this case for building without a permit and violating a stop-work order. None of the

photographs depicts construction, let alone construction without a permit or in violation of a stop-




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work order. Because plaintiffs fail to present evidence upon which a reasonable jury could find for

them, we affirm the district court’s rejection of their equal protection claim.


                                                 III.


       Accordingly, we AFFIRM the district court’s dismissal of plaintiffs’ claims.




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