Cook

*3 Opinion

Donald Cook challenges a City of Buena Park (City) ordinance obliging landlords to undertake eviction proceedings against “all occupants” of a rental unit when the chief of police suspects a tenant has engaged in or permitted illegal drug activity, gang-related crime, or a drug-related nuisance in or near the rental property. Because the ordinance imposes on landlords a substantial risk of erroneous deprivation of property rights through compelled eviction litigation, unwarranted fines and penalties, and countersuits by tenants, we hold the ordinance violates procedural due process. We conclude the procedures employed by the ordinance are constitutionally infirm in three respects: first, the notice requiring the landlord to institute unlawful detainer proceedings provides insufficient information to prosecute the action; second, the 10-day period within which the landlord must commence eviction is too short; and finally, the ordinance requires the landlord to prevail in the eviction action or face fines, penalties, a lien on his or her property, and even misdemeanor punishment. In view of these failings, we affirm the trial court’s judgment striking down the ordinance…

I share the misgivings of my colleagues about the procedural due process problems of this ordinance. I fully agree it does not pass constitutional muster in regard to those considerations. But I would be remiss if I did not also express my concern the ordinance may have more carcinogenic problems than we discuss in this opinion.

I am not yet convinced this ordinance does not suffer from other, more fundamental constitutional infirmities than procedural due process. I am concerned, inter alia, about its sweeping requirement that all occupants of the premises must be evicted for the sins of one, its disparate treatment of property owners and renters (our record reflects no nuisance abatement efforts against the owners of property for similar crimes), and the Damoclean substantive due process issue which hangs over this statutory scheme.

*11 Since we have resolved the matter on other grounds, I do not know how those concerns will play out. I may yet become convinced they too are also resolvable. But if the city chooses to revise the ordinance to address its procedural due process problems, I encourage it to give more thought to these other issues as well.

Donald Cook challenges a City of Buena Park (City) ordinance obliging landlords to undertake eviction proceedings against "all occupants" of a rental unit when the chief of police suspects a tenant has engaged in or permitted illegal drug activity, gang-related crime, or a drug-related nuisance in or near the rental property. Because the ordinance imposes on landlords a substantial risk of erroneous deprivation of property rights through compelled eviction litigation, unwarranted fines and penalties, and countersuits by tenants, we hold the ordinance violates procedural due process. We conclude the procedures employed by the ordinance are constitutionally infirm in three respects: first, the notice requiring the landlord to institute unlawful detainer proceedings provides insufficient information to prosecute the action; second, the 10-day period within which the landlord must commence eviction is too short; and finally, the ordinance requires the landlord to prevail in the eviction action or face fines, penalties, a lien on his or her property, and even misdemeanor punishment. In view of these failings, we affirm the trial court's judgment striking down the ordinance…