Abbit v. Bernier

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation387 F. Supp. 57
Decision Date24 December 1974
Docket NumberCiv. No. H-74-64.
PartiesFred ABBIT, Individually, and on behalf of all others similarly situated, Plaintiff, v. Conrad BERNIER, Deputy Sheriff, Windham County, State of Connecticut, as an Individual, and in his official capacity, et al., Defendants.

Raymond R. Norko, Tolland-Windham Legal Assistance, Inc., Danielson, Conn., for plaintiff.

Albert J. Callahan, Callahan & Devokaitis, Hartford, Conn., for defendants.

Robert K. Killian, Atty. Gen., of Conn., Timothy O. Fanning, Asst. Atty. Gen., of counsel, on the brief for State of Conn. as amicus curiae.

Frank B. Cochran and Kimball Haines Hunt, Conn. Civil Liberties Union Foundation, Inc., Hartford, Conn., on the brief for Conn. Civil Liberties Union Foundation, Inc. as amicus curiae.

Before SMITH, Circuit Judge, and CLARIE and BLUMENFELD, District Judges.


J. JOSEPH SMITH, Circuit Judge:

Fred Abbit, a judgment debtor against whose body a writ of execution has issued, seeks to enjoin the enforcement of Connecticut's body execution statute, Conn.Gen.Stat.Ann. § 52-369, and to secure a declaration of its unconstitutionality. He proceeds in this civil rights action, 42 U.S.C. § 1983, 28 U.S. C. § 1343(3),1 against the Connecticut officials charged with administering Conn.Gen.Stat.Ann. § 52-369 as to him.2 Their enforcement of the statute allegedly deprives the plaintiff under color of state law of his Sixth Amendment right to counsel, Eighth Amendment right to be free from cruel and unusual punishment, and Fourteenth Amendment guarantees of due process and equal protection. Because this challenge to the state statute presented a substantial question of constitutionality, this three-judge court has been convened under the mandate of 28 U.S.C. §§ 2281, 2284.

Since the suit is brought under 42 U.S.C. § 1983, there is no jurisdictional requirement that the plaintiff prove a minimum amount in controversy, Douglas v. City of Jeannette, 319 U. S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), and the statutory prohibition, 28 U.S.C. § 2283, on federal court injunctions against state court proceedings3 does not apply, Michum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Nor does the "actual controversy" requirement of Article III and the Declaratory Judgment Act, 28 U.S.C. § 2201, present an obstacle to jurisdiction in this case, for the issuance of a writ against the plaintiff's body gives concreteness to his concern that he may soon be deprived of the physical freedom which he currently enjoys. Compare, Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) with Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

For the reasons set forth below, we find that the defendants' enforcement of Conn.Gen.Stat.Ann. § 52-369 denies Abbit his federal constitutional right to the equal protection of the laws. We therefore enjoin the defendants from levying execution on the plaintiff's body. In addition, we declare that Connecticut's body execution statute is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

I. The Statute

Conn.Gen.Stat.Ann. § 52-369, as most recently amended, provides:

If personal estate of the debtor sufficient to satisfy the debt and charges cannot be found, and the creditor does not agree to take the debtor's lands, the officer shall levy the execution on the body of the debtor, unless exempt by law from imprisonment on such execution, and commit him to jail in the county in which the execution is being levied, where he shall remain until he pays the debt and the lawful fees and charges, or is discharged in due course of law. Each officer who commits any person to prison by virtue of distress or execution shall deliver an attested copy of the writ or execution to the commissioner of correction, or his authorized agent, which shall be a sufficient warrant to him to hold such person in safe custody until he is delivered in due course of law. If the debtor, after such levy of execution upon his body, is discharged or released from such imprisonment, or released by the officer serving the execution, by direction of the creditor, he shall not be liable to imprisonment again on the judgment upon which such execution issued, but the same may be collected out of his property.

Although this provision embraces all judgment debtors by its language, Conn.Gen.Stat.Ann. § 52-355 exempts certain categories of judgment debtors from its terms — most prominently, persons in debt for a judgment in an action "founded on contract merely, express or implied" (with several exceptions).4

Since Abbit's indebtedness derives from his unsuccessful defense of a tort claim, he is not protected by § 52-355 from the body execution authorized in § 52-369. Whether his tort was an ordinary one or involved some exacerbating feature such as fraud or malice — a distinction made by various states in their body execution statutes5 — is irrelevant to the operation of the Connecticut statute. Campbell v. Klahr, 111 Conn. 225, 229, 149 A. 770 (1930). See also, Chasnoff v. Porto, 140 Conn. 267, 99 A.2d 189 (1953); Gilman v. Joseloff, 135 Conn. 595, 597, 67 A.2d 551 (1949); Sibley v. Krauskopf, 118 Conn. 158, 160, 171 A. 4 (1934); Robinson, Attachment of the Body upon Civil Process, 7 Yale L.J. 295, 296 (1898). Nor does the Connecticut law attach significance to another frequent ground for distinction6: whether or not a debtor with insufficient property in the state to satisfy his debt may be concealing assets in the state or have fraudulently secreted his assets out of the state to avoid execution on them.

Very simply, then, Conn.Gen.Stat. Ann. § 52-369 sanctions imprisonment for a tort claim indebtedness without more. If the judgment debtor is in fact incapable of making payment — Abbit's apparent situation — there will be time enough for him to prove that by taking the poor debtor's oath from his cell. Conn.Gen.Stat.Ann. § 18-56.

II. Constitutional Validity

The plaintiff levels four independent constitutional attacks on the Connecticut body execution statute: arrest and incarceration without representation by appointed counsel infringes Abbit's Sixth Amendment right to counsel; body execution of a person because of his indigence amounts to a punishment for status violative of the Eighth Amendment's prohibition on cruel and unusual punishment; arrest and incarceration without notice and hearing constitutes a denial of due process under the Fourteenth Amendment; and imprisonment of persons without the means to prevent their incarceration deprives those persons of their Fourteenth Amendment right to the equal protection of the laws. Since we find the latter ground dispositive, we do not pass on the plaintiff's other contentions.7

The force of the plaintiff's equal protection claim rests squarely on the principle informing the Supreme Court's decisions in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). Both cases involved the constitutionality of keeping a person in prison beyond the maximum term set by statute for the particular offense in order to compensate for his inability to pay a fine included in his sentence. On the two occasions, the Court held that this difference in time served according to "ability to pay" constituted an "impermissible discrimination" violative of the Equal Protection Clause, Williams, supra, 399 U.S. 235 at 241, 90 S.Ct. 2018, 26 L.Ed.2d 586. The Court in Williams did take care to limit its holding to instances involving prison terms in excess of a statutory ceiling. Lower courts have, however—and we believe quite rightly — read these cases for their broader implication: that imprisoning someone "solely because of his indigency," Tate, supra, 401 U.S. 395 at 398, 91 S.Ct. 668, 28 L. Ed.2d 130, works a denial of equal protection. Thus, the Second Circuit has relied upon Tate and Williams to require that persons forced to spend time in jail due to their inability to meet bail be given credit against their sentence for this time served which one wealthier would have been able to avoid. Paroutian v. United States, 471 F.2d 289 (2d Cir. 1972); United States v. Gaines, 449 F.2d 143 (2d Cir. 1971) (per curiam). And the Fifth Circuit has invoked the Tate-Williams doctrine to strike down the "$30 or 30 days" type sentence.8 Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972); Burton v. Goodlett, 480 F.2d 983 (5th Cir. 1973).

Under Conn.Gen.Stat.Ann. § 52-369, the sheriff may levy the execution on the judgment debtor's body without any proof that the latter has the capacity to pay the debt. If the debtor in fact lacks this capacity, however, then he is being punished for his indigence. And as the Second Circuit confirmed in United States v. Gaines, supra, 449 F.2d 143 at 144, imprisoning a man "solely because of his lack of wealth" is precisely what Williams and Tate have proscribed as a matter of equal protection. Indigents go to jail under § 52-369 while those of greater means have the keys to their cell in their pockets.

We therefore enjoin the application of § 52-369 to Abbit and, further, declare the statute unconstitutional under the Fourteenth Amendment's Equal Protection Clause. Although the statute does not expressly exclude the possibility of a pre-incarceration hearing to determine the judgment debtor's ability to pay the debt, the Connecticut courts have acquiesced in the statute's consistent application without such a hearing and have thereby adopted an exclusionary construction as their own. See, e. g., Campbell v. Klahr, supra, 111 Conn. 225 at 226, 149 A. 770.9 Authority for this construction of the statute may also be drawn from the legislature's express provision for a pre-incarceration inquiry into ability to pay in the closely analogous non-support context:10 From...

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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
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