Lavoie v. Bigwood, No. 71-1291.

Decision Date03 March 1972
Docket NumberNo. 71-1291.
Citation457 F.2d 7
PartiesRobert LAVOIE, Plaintiff-Appellant, v. James BIGWOOD et al., Defendants-Appellees.
CourtU.S. Court of Appeals — First Circuit

John P. Griffith, Nashua, with whom Hamblett, Kerrigan, LaTourette & Lopez, Nashua, on the brief, for appellant.

Morris D. Stein, Nashua, with whom Stein, Gormley & Morrill, J. Russell Widener, and Guertin & Widener, Nashua, on the brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

According to the complaint and the evidence presented at a brief hearing, plaintiff Robert Lavoie and his family have, since July 5, 1968, rented a space for their mobile home in the Bel Aire Mobile Home Park in Merrimack, New Hampshire, which is owned by defendants James and Rita Bigwood. The complaint states that Lavoie, an active member of a tenants' association, has complained to public officials about defendants' management of the park. For that reason, Lavoie contends, he was given notice, on May 25, 1971, to quit the premises on June 28, 1971. When he did not comply, defendants sought to evict him by filing a Landlord and Tenant writ of summons in municipal court on or about June 29, 1971. In response, plaintiff instituted the present action under 42 U.S.C. § 1983. By agreement of the parties, the eviction proceeding has been stayed pending the outcome of this action.

Defendant takes the position that, as plaintiff is merely a tenant at will, his tenancy can be terminated for any reason by giving thirty days' notice. Plaintiff argues that the otherwise "purely private" relationship between landlord and tenant is transformed by the New Hampshire landlord and tenant and zoning laws, that these laws so infuse the landlord's action that it becomes "state action". Assuming the truth of the claim that eviction was sought in retaliation for the exercise of his rights of speech and association, the district court nevertheless dismissed for failure to state a cause of action, finding simply that defendants' action was not "state action" and therefore did not violate plaintiff's rights under the Fourteenth Amendment.

Preliminarily, a cause of action under § 1983 is stated only if the plaintiff alleges both that a defendant's action is "under color of any statute, ordinance, regulation, custom, or usage, of any State" and that the action subjects the plaintiff "to the deprivation of any rights . . . secured by the Constitution . . . ." Where as here, the rights allegedly infringed are the rights of free speech and association guaranteed by the Fourteenth Amendment as it incorporates the First Amendment, the deprivation must take the form of "state action".

In addressing the question whether plaintiff has adequately alleged state action, we turn first to the landlord and tenant statute, under which eviction may be sought in three steps. "Any lessor or owner of lands or tenements may at any time determine any lease at will or tenancy at sufferance, by giving to the tenant or occupant a notice in writing to quit the same at a day named therein." N.H.R.S.A. c. 540, § 2. After notice to quit, the landlord may bring a possessory action, N.H.R.S.A. c. 540, § 12, by obtaining a writ of summons, N.H.R.S.A. c. 540, § 13, and then a writ of possession, N.H. R.S.A. c. 540, § 14. On its face the statute thus appears to permit eviction without limitation as to motive, an appearance confirmed by the decisions of the New Hampshire courts, most notably Wormood v. Alton Bay Camp Meeting Association, 87 N.H. 136, 175 A. 233 (1934). In that case, the New Hampshire Supreme Court responded to a claim that the tenant was being evicted for having brought a damage suit against the landlord by declaring that "the motives of the landlord in seeking to terminate the tenancy are immaterial . ." 87 N.H. at 138, 175 A. at 234. Nor does either party in the present case suggest that a motive to evict Lavoie in retaliation for his exercise of his rights of speech and association would be a defense under New Hampshire law in an action for a writ of possession.1

New Hampshire delegates its zoning power to the cities and towns of the state:

"For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of any city or town is empowered to regulate and restrict the height, number of stories and size of buildings and other structures, lot sizes, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes." N.H.R.S.A. c. 31, § 60.

The Town of Merrimack has exercised its authority over mobile homes in three quite different ways. It has first imposed ordinary residential restrictions as to lot size, setbacks, and adequacy of sanitary facilities. Another restriction is peculiar to mobile homes: the prohibition "no mobile home shall be located other than in a mobile home park" (Art. VIII, § 2) is coupled with the further prohibition "no mobile home park shall be established or operated without a permit from the Board of Selectmen" (Art. VIII, § 3, ¶ A). In consequence of this restriction, the mobile home owner may not purchase land on which to place his mobile home but must rent space on another's land. Finally, and most strikingly, the ordinance states that "before any permit for a mobile home park shall be issued, the Town Planning Board shall have certified to the Board of Selectmen that the proposed mobile home park will not be injurious or detrimental to the neighborhood in which it is to be situated" (Art. VIII, § 3, ¶ D). The ordinance obviously reflects a concern with the special problems created by mobile homes. Realistically construed, in conjunction with the provision that "no mobile home shall be placed closer than 150 feet to an existing residence" (Art. VIII, § 3, ¶ C(2)), it demonstrates the town's determination that there be metaphorical tracks for a mobile home park to be on the other side of.

As for the implementation of the statute, the record is limited. Plaintiff's attorney did offer to amend the complaint to allege that "there is at least in fact a monopoly created by the town by the way of zoning codes have been enforced so far as mobile home parks, so that in the Town of Merrimack, Mr. Bigwood's park is the only major mobile home park which has been allowed to be put in there . . . ." The court did not rule on this offer, but simply granted permission for Mrs. Lavoie to take the stand. Since she was then permitted to testify concerning her unsuccessful efforts to find a substitute location within thirty-five miles of Merrimack, we will treat the court's action as an implicit acceptance of the amendment.2 Liberally construed, as is appropriate on a motion to dismiss, the amendment alleges both that the defendants' park is the sole mobile home park in Merrimack and that the town has denied permits to others who wished to open additional parks.

The critical issue, whether the confluence of court-enforced eviction and monopoly power created by zoning sufficiently implicates the state to be termed state action, must be resolved by reference to unsynthesized lines of cases. The chaotic state of the doctrine is particularly unfortunate where, as here, the state is involved in more than one way in the challenged action, and it is unclear whether we ought to measure the voltage as if the actions were in series or as if in parallel.

Conventionally, there is thought to be a line somewhere between two "polar propositions": that under the Fourteenth Amendment, a state may not deprive a person of his constitutional rights; and that a person may for any reason discriminate against other persons in his private affairs.3 The notion that these are polar propositions has led courts, in cases involving nominally private actions, to explore from each pole in order better to locate the equator. With the "state action" pole are associated such phrases as "state compulsion or involvement",4 and with the opposite pole, state "neutrality"5 and "purely private"6 or "merely private"7 conduct. In attempting to sort out the uses of these phrases, we recognize that in the broadest senses of the words, the states are always involved in private actions, are never pristinely neutral.

Viewing the problem, for the moment, as one of defining "neutrality" in a less strict sense, we turn to Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), where the Court found "state action" in the enforcing by a state court of a racially restrictive covenant. Shelley and its implications have been the subject of extensive discussion, which we do not propose to recapitulate.8 In arriving at our own interpretation, we are aided by the discussion in Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964). In that case a deputy sheriff had ordered certain black patrons to leave a privately-owned amusement park, had arrested them when they refused to do so, and had brought a prosecution for criminal trespass. The Court recounted Maryland's argument that it

"may . . . constitutionally enforce an owner\'s desire to exclude particular persons from his premises even if the owner\'s desire is in turn motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation since the owner\'s ultimate purpose is immaterial to the State." 378 U.S. at 136, 84 S.Ct. at 1773.

The Court responded that such were not the facts of the case before it, in that "The president of the corporation which owned and managed the park testified that he had instructed the deputy sheriff to enforce the park's policy of racial segregation." 378 U.S. at 136-137, 84 S.Ct. at 1773. A state, then, must be more strictly neutral than to permit any of its officers to identify the...

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