               IN THE SUPREME COURT OF IOWA
                              No. 44 / 04-1459

                            Filed August 11, 2006


WALTER NORMAN KISTLER and JEAN ANN KISTLER,

      Appellants,

vs.

CITY OF PERRY, IOWA,

      Appellee.


      Appeal from the Iowa District Court for Dallas County, Darrell J.

Goodhue, Judge.



      Owners appeal from district court order upholding the city’s seizure of

the plaintiffs’ motor vehicles under the city’s nuisance ordinances.

REVERSED AND REMANDED.



      Stephen V. Nielsen of Skinner & Nielsen, P.L.C. West Des Moines, for

appellants.



      Sarah M. Kouri and William L. Dawe III of Hopkins & Huebner, P.C.,

Des Moines, for appellee.
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LARSON, Justice.

      The City of Perry, acting under authority of its nuisance-abatement

ordinances, seized twelve vehicles from the plaintiffs’ property.         The

plaintiffs, Walter and Jean Kistler, challenged the seizure through an action

seeking temporary and permanent injunctions and damages. The district

court denied the injunction and granted the city’s partial motion for

summary judgment over the plaintiffs’ argument that the seizure orders

were unconstitutional. The plaintiffs appeal, and we reverse.

      I. Facts and Prior Proceedings.

      The plaintiffs own three properties in Perry. In the fall of 2002, the

city became concerned about a number of vehicles that it considered junk

on one of the Kistlers’ lots. On November 6, 2002, the city sent a notice to

the plaintiffs to remove the vehicles within fourteen days. The plaintiffs

declined, and as the city had threatened, it seized the vehicles.         The

plaintiffs claimed foul because they were seized without an opportunity for

them to challenge the city’s actions or to establish whether they were, in

fact, junk under the city’s ordinance.

      The November 6, 2002 notice to the Kistlers stated:

            You are hereby notified to abate the nuisance existing
      [on the plaintiffs’ property] within 14 days from receipt of this
      notice.
            The nuisance consists of junk and junk vehicles that
      shall be abated by removal from the above referenced
      properties.
            In the event that you fail to abate, or cause to be abated,
      the above referenced nuisance within the time period
      designated herein, the City of Perry will take such steps as are
      necessary to abate, or cause to be abated, said nuisances and
      the cost of the abatement action will be assessed against you
      and/or the above-referenced properties, as provided by law.

      The notice did not inform the Kistlers of any opportunity to have a

hearing on the matter, and the city concedes that neither the notice to abate
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nor the ordinance provides for any such hearing. The issue presented on

appeal is whether the city’s nuisance-abatement provision, allowing seizure

of the vehicles under these circumstances, denied the plaintiffs due process.

      II. Principles of Review.

      We review a district court’s grant of a summary judgment for

correction of errors at law. Campbell v. Delbridge, 670 N.W.2d 108, 110

(Iowa 2003). Summary judgment is appropriate only when there are no

genuine issues of material fact, and the moving party is entitled to judgment

as a matter of law. Id. We, of course, review constitutional issues de novo.

Dressler v. Iowa Dep’t of Transp., 542 N.W.2d 563, 565 (Iowa 1996).

      III. The City Ordinances.

      The Kistlers argue that section 50.05 of the city’s ordinance is

unconstitutional because it places sole discretion over nuisance abatement

in an administrative officer, without providing for a due-process hearing.

Under that ordinance,

      [w]henever the Compliance Officer finds that a nuisance exists,
      such officer has the authority to determine on a case-by-case
      basis whether to utilize the nuisance abatement procedure or
      to issue a citation to the person for violation of this Code of
      Ordinances.

The plaintiffs contend that the city’s compliance officer arbitrarily

determined their vehicles to be a nuisance. The city responds that this

determination was made on the basis of a city ordinance that deemed

certain conditions to be nuisances. Section 50.02 lists certain conditions,

not including vehicles, that are deemed to be nuisances.        However, in

section 50.03, the ordinance provides:

      The following chapters of this Code of Ordinances contain
      regulations prohibiting or restricting other conditions which
      are deemed to be nuisances:
            1. Junk and Junk Vehicles (See Chapter 51).
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Chapter 51, in turn, provides a broad definition of junk vehicles. In part, it

provides that “Junk vehicle” means “any vehicle legally placed in storage

with the County Treasurer or unlicensed and which has any of the following

characteristics[.]” Then follows a list of conditions that will cause a vehicle

to be considered junk. If the vehicle has broken glass; a broken, loose, or

missing part; houses nuisance animals; contains any flammable fuel; or if it

is “inoperable” or in a “defective or obsolete condition,” it fits the definition.

      Section 51.02 then provides:

      JUNK AND JUNK VEHICLES PROHIBITED. It is unlawful for
      any person to store, accumulate, or allow to remain on any
      private property within the corporate limits of the City any junk
      or junk vehicle.

      Legislatures have broad authority to define nuisances and to provide

methods for their abatement. See 58 Am. Jur. 2d Nuisances § 48, at 605

(2002).   This is true as to city governments in Iowa.          See Iowa Code

§ 364.12(3) (“A city may: a. Require the abatement of a nuisance, public or

private, in any reasonable manner.”). The operative word in this statute is

“reasonable.”     The plaintiffs claim that the city’s ordinance is so

unreasonable it violates due process, and there is considerable support for

that claim in the general nuisance law.

             Generally, before the abatement of a nuisance, the
      property owner responsible for the nuisance is entitled to due
      process of law, that is, formal notice and hearing to determine
      whether the property is in fact a nuisance in most instances. If
      possible, the owner of property should, before its destruction,
      be given a hearing upon the question of whether the property is
      in fact a menace to the community. Requirements of due
      process are satisfied by a statute authorizing the destruction of
      property as a public nuisance where it provides for an
      investigation and ascertainment of the facts by a public officer,
      notice to the owner, and an appeal to the court from the
      decision.

58 Am. Jur. 2d § 406, at 831 (footnotes omitted). “Things which are by

common or statutory law declared to be nuisances per se, or which are by
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their very nature palpably and indisputably such, may be abated or

destroyed by public authorities without notice or hearing.” Id.

      In this case, the city does not contend that these vehicles were

“palpably and indisputably” nuisances.       However, the city claims the

vehicles were clearly made nuisances through the enactment of its

ordinance that defined junk vehicles. See id. at 831-32 (“Where a statute so

specifically defines what constitutes a nuisance as to leave no room for

latitude on the question, officials are authorized and protected in abating

such described nuisances and no notice or hearing is required.”).

      However, the city’s ordinance defining junk vehicles is so broad that it

gives little meaningful notice as to what constitutes junk. In Perry, for

example, an unlicensed vehicle with a broken or cracked windshield or

other glass, and a broken, loose, or missing part, or containing “gasoline or

any other flammable fluid” (which all vehicles do), could be seized by the

city’s enforcement officer.   In contrast to this broad definition of junk

vehicles, a state statute provides this objective, understandable description

of a similar category of vehicles:

            “Wrecked or salvage vehicle” means a damaged vehicle
      for which the cost of repair exceeds fifty percent of the fair
      market value of the vehicle before it became damaged.

Iowa Code § 321H.2(10).

      In Walker v. Johnson County, 209 N.W.2d 137 (Iowa 1973), junk cars

were also at the center of controversy. In that case, the Johnson County

Health Board was empowered “to investigate, on complaint or on its own

initiative, any health nuisance in the county and order its abatement.”

However, the ordinance made no provision for notice or hearing to

determine whether a health nuisance in fact existed. Walker, 209 N.W.2d

at 138. We said:
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             Under these circumstances, where no emergency exists
      and the determination of a nuisance lies only in the discretion
      of an administrative officer, the scales tip against unrestricted
      governmental action under the guise of police power and in
      favor of the due process notice and hearing requirements.

Id. at 140.

      In this case, the city argues that Walker must be distinguished

because, unlike the present case, the owners of the vehicles in Walker

lacked advance notice as to what constituted a hazard. We noted that “the

unlicensed cars, however offending aesthetically, are nowhere defined as a

health nuisance per se.” Id. We disagree with the city’s rejection of the

Walker rationale. Here, the ordinance describing junk vehicles is so broad

that it fails to give any meaningful notice as to what may be seized or what

limits are imposed on the powers of the enforcement officer. Moreover, as in

Walker there is no evidence that the vehicles were “palpably and

indisputably” nuisances or that “there is any evidence of an emergency

situation.” Id. at 139-40.

      In an analogous case involving two states’ replevin statutes permitting

seizures without prior notice and opportunity to be heard, the Supreme

Court observed:

            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.” Baldwin
      v. Hale, 1 Wall. 223, 233, 17 L. Ed. 531. . . . It is equally
      fundamental that the right to notice and an opportunity to be
      heard “must be granted at a meaningful time and in a
      meaningful manner.”

Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d 556,

569-70 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct.

1187, 1191, 14 L. Ed. 2d 62, 66 (1965)).

      Moreover, as the Court noted, a postseizure remedy is usually

inadequate:
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             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. At a later hearing,
      an individual’s possessions can be returned to him if they were
      unfairly or mistakenly taken in the first place. Damages may
      even be awarded to him for the wrongful deprivation. But no
      later hearing and no damage award can undo the fact that the
      arbitrary taking that was subject to the right of procedural due
      process has already occurred. “This Court has not . . .
      embraced the general proposition that a wrong may be done if
      it can be undone.”

Fuentes, 407 U.S. at 81-82, 92 S. Ct. at 1994-95, 32 L. Ed. 2d at 570

(quoting Stanley v. Illinois, 405 U.S. 645, 647, 92 S. Ct. 1208, 1210, 31

L. Ed. 2d 551, 556 (1972)).

      We hold that the ordinance under which these vehicles were seized

denied the plaintiffs their procedural due process rights in violation of the

Fourteenth Amendment to the United States Constitution and article I,

section 9 of the Iowa Constitution. The plaintiffs also ask that we declare

the ordinance unconstitutional on its face.       This is also an issue we

addressed in Walker:

            There remains the question of the scope of this decision.
      Enactments may be constitutional in operation with respect to
      some persons and states of fact and unconstitutional as to
      others. An enactment may be limited to its valid applications.
             Under other circumstances involving a palpable health
      nuisance per se, or in a situation of clear and compelling
      emergency, the board’s ordinance might arguably function
      within the due process constitutional parameters where
      validity of state police power enactments are litigated. We do
      not decide that issue. We only decide the ordinance, in the
      case of Walker, operates unconstitutionally in violating due
      process . . . .

209 N.W.2d at 140 (citations omitted).

      In this case, the ordinance does not require the enforcement officer to

seize vehicles without a hearing; it only authorizes the officer “to determine

on a case-by-case basis whether to utilize the nuisance abatement

procedure or to issue a citation . . . .”       Under this ordinance, the
                                        8

enforcement officer could follow either alternative by providing a notice and

hearing and thereby avoiding constitutional problems. We do not believe

the ordinance is invalid on its face.

      According to the record, residents of Perry have been upset about the

Kistlers’ operation for years, and that is understandable. But, regardless of

how aesthetically offending the vehicles might be, they were not shown to be

so clearly and palpably nuisances that they could be legally seized without

notice or hearing. We therefore reverse the judgment of the district court

and remand for further proceedings under the plaintiffs’ petition for

injunctions and damages.

      REVERSED AND REMANDED.

      All justices concur except Wiggins, J., who takes no part.
