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Septic installer’s federal suit against Brown County reinstated

June 27, 2017

A Brown County man whose license to service and install septic systems was revoked without notice or a hearing may proceed with his federal lawsuit against the county.

The 7th Circuit Court of Appeals on Monday reversed dismissal of John Simpson’s complaint, holding that the pleadings plausibly allege that he was denied a due-process hearing, and that the county has not shown there is an adequate remedy in state law for his deprivation.

Simpson was removed from a list of county-approved septic installers in October 2013, after county officials sent him a vague notice of a problem on his mother’s property. “The County had a septic ordinance that plainly described the process for the placement of septic installers on a register and (not so plainly) described the process for their removal,” Judge David Hamilton wrote for the panel.

The ordinance gave county health officials discretion to remove any person who demonstrated “inability or unwillingness” to comply with the ordinance. Hamilton wrote that when the county health officer revoked Simpson’s license without notice or a hearing, he “was not acting unpredictably or breaking the rules: he did exactly what the ordinance told him to do. The possibility of license revocation without due process was not unforeseeable. It was authorized in the ordinance itself.”

“We see no reason to believe that the cost of basic procedures (e.g., meaningful notice and an informal hearing) would be unduly burdensome in comparison with the protections those additional procedures would provide,” the court held in John Simpson v. Brown County, et al., 16-2234.

“… (N)othing on the face of Simson’s complaint indicates that the County had a sufficiently urgent interest to justify summary revocation of his license. But even if the County could prove that it had such an interest … it has not shown that any existing state remedy could have made Simpson whole in the event that he ultimately proved the license revocation was wrongful,” Hamilton wrote.

“Taking Simpson’s allegations as true, he has stated a claim for a violation of procedural due process. His septic license was revoked pursuant to a broad delegation that gave county officers the power to act without affording Simpson notice and an opportunity to be heard before the revocation. Moreover, the County has identified no state law remedy (and we are aware of none) that could vindicate Simpson’s rights. While discovery may cast new light on the situation, Simpson is entitled to proceed with his §1983 claim for deprivation of property without due process of law,” the court concluded.

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