Daily Independent (Ashland, KY)

March 20, 2013

Judge dismisses eviction suit against Ashland

Wilhoit rules city and county went out of way to help

Kenneth Hart
The Independent

ASHLAND — A federal judge has ruled the City of Ashland didn’t act improperly when it evicted a man from his home last year because he and his eight cats were living there without utilities.

Senior U.S. District Judge Henry R. Wilhoit Jr. last month entered an order in which he found in the city’s favor in a civil lawsuit filed against it by John David Kennard.

Wilhoit also granted summary judgment to Boyd County, which was named by Kennard as a defendant in the suit because Kennard’s cats were euthanized at the county animal shelter after being removed from his home in the 5200 block of Skyline Drive.

Kennard claimed in the lawsuit that by evicting him from his home on March 7, 2012, the city violated his right to be secure in his own home, guaranteed to him by the Fourth Amendment to the U.S. Constitution. He also alleged the eviction violated his right to due process of law, guaranteed to him by the Fourth and Fifth Amendments.

But Wilhoit found that neither the city nor the county had done anything to violate Kennard’s rights and that, in fact, both actually bent their rules to try to help him.

At Kennard’s request, the city granted him a one-month extension to get his utilities reconnected, which would have resulted in the condemnation order for his home being lifted, according to the ruling. Kennard failed to do so, but he wasn’t actually evicted until he was found to still be living in the house nearly eight months after it was condemned.

Similarly, the animal shelter gave Kennard 10 days to reclaim his cats, three days longer than the normal waiting period, and only euthanized them after he failed to pick them up, Wilhoit wrote.

Wilhoit found the city’s condemnation of Kennard’s home, which was shown in photographs to be “covered in filth and contamination and in an utter state of disrepair,” didn’t amount to a taking without due process “because it was necessary to protect the public.

“It appears (Kennard’s) only argument is that the city cannot force him to connect utilities,” the judge wrote. “However, it is clear from the city’s Property Maintenance Ordinance that the city has not only a right, but an obligation to ensure compliance therewith as part of its police powers.”

Kennard, who filed the lawsuit pro se, meaning without an attorney, on Wednesday filed notice of his intention to appeal Wilhoit’s ruling to the U.S. Sixth Circuit Court of Appeals.

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.