The Tennessee Neighborhood Preservation Act
The Tennessee Legislature passed the Neighborhood Preservation Act (NPA) in 2004. The law allows private and government entities to sue to enforce municipal code provisions. Memphis, which has and continues to have a significant problem with abandoned homes, embraced the law and became the most vigorous proponent of the law in the state. Cases brought under the NPA are heard in the Environmental Court.
Until 2016, the NPA limited actions to abandoned properties, “structure[s] . . . not occupied by any owner, tenants or residents.”1 These buildings are often abandoned, have clouded or unknown title, or are owned by individuals out-of-Memphis who have let their properties deteriorate. However, in 2016, the Tennessee Legislature amended the NPA to allow for a civil public nuisance cause of action against the owners of occupied properties.2 Even before then, however, the Environmental Court heard cases involving occupied property, including Ms. Hohenberg’s case.
Filing an NPA petition allows the government to enter a property—at any time—to board, secure, or maintain the property at any time and at the expense of the owner.3 It also creates a super lien on the property (meaning that the lien is superior to all other liens, including tax liens) for the receiver.4 The petition acts to bar the owner’s transfer of title in the property, including by tax sale, foreclosure, or execution of a different lien.5 The court may also award the plaintiff attorneys’ fees and costs.6 In contrast, the statute does not permit a property owner to recover attorneys’ fees and costs for successfully defending a suit brought pursuant to the NPA.
The Environmental Court
Established in 1983, the Environmental Court has sole authority to adjudicate code violations, cases seeking injunctive closures under Tennessee’s Criminal Nuisance Statute, and cases arising under the NPA.7 In the Environmental Court, private plaintiffs or Memphis code enforcers present unsworn, unauthenticated information about defendants’ homes. Neighbors testify against a defendant by being called upon in the audience and asked to stand and speak. Anyone wishing to review what happened in a case against them is typically out of luck—many case files are lost, destroyed, or may not have been created in the first instance.
The Environmental Court is not a court of record, meaning its proceedings are not transcribed, and no record is created.8 A courtroom that does not verify evidence, hear testimony under oath, or keep records is no court at all. Despite the requirement in Tennessee’s Rules of Appellate Procedure that there be a record on appeal,9 the Tennessee Court of Appeals has held that appeals from the Environmental Court go directly to the Tennessee Court of Appeals and do not get a new hearing in the Tennessee Circuit Court. What this means in practice is that while a person may, in theory, appeal from an Environmental Court decision, there is no record for an appellate court to examine. Put another way, defendants have the right to appeal in name only.
The court does not follow the Tennessee Rules of Civil Procedure or the Rules of Evidence, nor does it follow the processes of a court at all. Rather, its proceedings are governed by the Shelby County General Session Rules—Criminal Division Rules, a six-page document largely concerned with courtroom decorum. The Environmental Court’s processes are woefully deficient to the point where its operations do not look like those of an actual court. In sum, the Environmental Court gives defendants just a simulacrum of an actual court.
From the mid-1990’s until 2018, Sarah Hohenberg owned her home at 1905 Overton Park outright, with no mortgage. Ms. Hohenberg lived in her home without incident until the summer of 2009 when a powerful windstorm felled a massive tree in her yard, significantly damaging the roof and the rear portion of her home. While Ms. Hohenberg’s insurance paid for the removal of the tree and for temporary repairs to the home, it would not permanently fix the structure. Her insurance declined to cover the full repairs and she had to sue the company to try to get them to provide coverage.
While this suit was ongoing, her neighbors determined that repairs were not happening quickly enough. They sued her in Environmental Court and, eventually, the Evergreen Historic District, a non-profit entity, took over as plaintiff.
For Ms. Hohenberg, in her late 60s, with failing health, and mobility struggles, the Environmental Court litigation was a devastating experience. A receiver took possession of the home and Ms. Hohenberg was ordered to sign a quit-claim deed so the house could be auctioned to the highest bidder. Ms. Hohenberg refused to sign the deed. The Environmental Court issued an order of contempt and bodily attachment (arrest). Fearing that jail would kill her in her fragile physical state, Ms. Hohenberg fled Tennessee and her son paid for her to stay at a hotel in Mississippi. The court then ordered her possessions out of the home and, unable to move her possessions herself or pay for someone to move them, City of Memphis eventually threw her personal possessions into the street.
The Environmental Court’s proceeding had little meaningful process. The Environmental Court did not follow the Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence. The proceedings were not transcribed or recorded, and no evidence was authenticated, admitted, or retained. Even if she could appeal, her case could never be subject to meaningful review by appellate courts.
As a result of these proceedings and attendant financial reverses, Ms. Hohenberg filed for Chapter 7 bankruptcy on August 2, 2018. On March 8, 2019, the bankruptcy court entered an order approving sale of her home. With the home gone, the Environmental Court issued an order on June 24, 2019, dismissing the cases against Ms. Hohenberg and recalling all warrants. This elliptical end to the matter made no findings of fact or conclusions of law—and entered no final judgment in favor of one party or the other. Ms. Hohenberg’s life is in ruins—she remains homeless and has suffered a stroke during the bankruptcy proceeding. Her house remains standing but has continued to deteriorate and is now in worse shape than it was when the Environmental Court forced her to leave the property.
The Environmental Court issued orders jailing Mr. Hanson and bulldozing his home—depriving him of his liberty and property without due process. Mr. Hanson’s Environmental Court woes, like Ms. Hohenberg’s, began when a tree fell on his family home in Memphis. Mr. Hanson’s case came to Environmental Court by way of a City of Memphis exterior inspection of his messy yard.
The horrors visited on Mr. Hanson by the Environmental Court far outweigh any harm stemming from property neglect. When Mr. Hanson did not show up for a “hearing” of which he had not been informed, the Environmental Court issued a warrant for his arrest and he was arrested. The police did not let him make a phone call for his $50 bond and he was jailed for five days. This was at least the second time Mr. Hanson has been arrested in an Environmental Court matter.
In early 2020, the Environmental Court authorized Memphis officials to board, condemn, and bulldoze Mr. Hanson’s home without providing notice to Mr. Hanson. The City destroyed Mr. Hanson’s house with all his possessions and records a casualty of the process.
The Growth of Environmental Courts Across the Country
Memphis’s Environmental Court is “one of the most well-known in the country.”10 There are, however, similar specialized blight courts nationwide. In an effort to replicate Memphis’s system in other jurisdictions, former Environmental Court Judge Larry Potter travelled across the country “touting the benefits of consolidating a community’s code and property-related matters into a single specialized court.”11 One proponent boasted that “[t]o date there are approximately 70 environmental courts across the U.S., many of which have been inspired by or patterned after the Memphis/Shelby County Environmental Court, which is considered to be a national model.”
For example, Detroit’s blight court, as in Memphis, has broad discretion to create its own “rules and procedures for the adjudication of blight violation notices.”12 The department only requires that “the formal rules of evidence as applied to a non-jury civil case in Circuit Court” govern only “as far as is practicable.”13
Cleveland’s housing court also shares many hallmarks of Memphis’s Environmental Court. It is a single-judge court which allows actions by private-parties against their neighbors’ nuisance properties. These suits can result in the appointment of a receiver who gets a “super-priority lien.” 1415 The default rule is that no proceedings are recorded or transcribed, and the court has broad jurisdiction which—as in Memphis—includes the ability to issue arrest warrants.16 Cleveland’s aggressive “war” on blight shows no signs of slowing down.17 These examples are by no means an exhaustive list of American blight courts, but they do show that the potential for abuse in these courts is widespread.
The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that, before a person may be deprived of his or her property, the property owner must be provided notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Memphis’s Environmental Court proceedings do not even come close to meeting this standard. Indeed, they are shocking the conscience and so brutal and offensive as to not comport with traditional ideas of fair play and decency.
This case will ensure that Environmental Courts around the country maintain adequate procedural protections for homeowners and will reaffirm a level of process required when the government seeks to deprive someone of their liberty or property.
The challenge to Memphis’s Environmental Court is led by Institute for Justice Attorneys Bill Maurer, Rob Peccola and Keith Neeley. Bruce Kramer and Scott Kramer of the Memphis law firm Apperson Crump serve as local counsel.
THE INSTITUTE FOR JUSTICE
Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s leading advocate for private property rights. IJ defends the rights of homeowners, as it did in Kelo v. City of New London, and it defends the property rights of renters, as it has done in its pathbreaking class-action challenge to New York’s no-fault eviction policy and its repeated defense of the Fourth Amendment rights of tenants objecting to unconstitutional mandatory government inspections. In 2018, IJ obtained a settlement in a class action challenge to Philadelphia’s forfeiture machine that similarly relied on a specialized courtroom with no judge, evidence, or adherence to procedural rules.
1: See Tenn. Code Ann. § 13-6-102(2) (2014).
2:  See 2016 Tenn. Laws Pub. Ch. 727 (H.B. 1932).of rec
3:  Tenn. Code Ann. § 13-6-106(c)(3).
4:  Tenn. Code Ann. § 13-6-106(c)(1).
5[: 1] Tenn. Code. Ann. § 13-6-106(c)(2).
6:  Tenn. Code Ann. § 13-6-104(d).
7:  Schaffzin, supra note 1, at 138.
8:  State ex rel. Gibbons v. Club Universe, No. W2004-02761-COA-R3-CV, 2005 Tenn. App. LEXIS 439, at *15 (Tenn. Ct. App. July 26, 2005).
9: Tenn. R. App. P. 24(a).
10: Schaffzin, supra note 1, at 122.
11: Id. at 138.
12: Id. at 138 n.112 (citation omitted).
13: 1997 Detroit City Charter Section 2-111; Detroit Code Section 8.5-3-4.
15: See Hon. Raymond L. Pianka, Cleveland Housing Court—A Problem-Solving Court Adapts to New Challenges, Trends in State Court (2012), https://www.ncsc.org/sitecore/content/microsites/future-trends-2012/home/Courts-and-the-Community/3-3-Cleveland-Housing-Court.aspx; O.R.C. § 1901.01, et seq.
16: See Pianka, supra n. 63.
17: See Cleveland Municipal Housing Court Local Rule 3.08, https://clevelandmunicipalcourt.org/docs/default-source/cleveland-housing-court/cmhclocalrules—(jan-2019).pdf?sfvrsn=1aed483d_0; Pianka, supra n. 63.
18: Sia Nyorkor, Cleveland wages war against blight, pledges to demolish 1,000 homes, WOIO Cleveland 19 (Oct. 23, 2018), https://www.cleveland19.com/2018/10/23/cleveland-wages-war-against-blight-pledges-demolish-homes/.