Benboe v. Carroll

• Decision Date: 02 November 1977
• Docket Number: Civ. A. No. C 76-0566 L(4).
• Citation: 494 F. Supp. 462
• Parties: Claude BENBOE, D. E. Smith and Johnson Bonding Company, Inc., Plaintiffs, v. Julian M. CARROLL, Governor, Commonwealth of Kentucky et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

494 F. Supp. 462

Claude BENBOE, D. E. Smith and Johnson Bonding Company, Inc., Plaintiffs, v. Julian M. CARROLL, Governor, Commonwealth of Kentucky et al., Defendants.

Civ. A. No. C 76-0566 L(4).

United States District Court, W. D. Kentucky, Louisville Division.

June 16, 1977.

On Motion November 2, 1977.

Samuel Manly, Louisville, Ky., for plaintiffs.

C. Gibson Downing, Stoll, Keenon & Park, Harry B. Miller, Miller, Griffin & Marks, Lexington, Ky., for defendants.

On Motion for Attorneys' Fees November 2, 1977.

ALLEN, District Judge.

This action is submitted to the Court on the motion of the defendants to dismiss the complaint, which was converted into a motion for summary judgment by order of the Court, lengthy and exhaustive briefs having been filed by the parties.

Plaintiffs, all of whom were, until July 6, 1976, licensed professional bail-bondsmen in Kentucky, challenge the constitutionality of K.R.S. 431.510 et seq., which abolished the commercial bail-bond system in Kentucky and made it unlawful for professional bail-bondsmen to furnish bail, or funds, or property to serve as bail, and provided, also, that the violation of the law was punishable as a Class A misdemeanor for the first offense and as a Class D felony for each additional offense.

The complaint alleges five counts; the first is that the Act of the Legislature is a bill of attainder and is in violation of Article I, Section X of the Constitution of the United States. The second count alleges that the Act impairs the right to contract and is void as repugnant to Article I, Section X of the Constitution. The third count alleges the violation of First, Fifth and Fourteenth Amendment rights of association and of the right not to be deprived of property and livelihood without due process of law. The fourth count, in essence, repeats in part the due process claims of the third count, and asserts an equal protection claim. Finally, the fifth count alleges that the actions of the defendants are in violation of plaintiff's rights, privileges and immunities secured by the Constitution of the United States.

Since the parties have presented matters to the Court outside the scope of the pleadings, the Court will treat the motion to dismiss as though it were a motion for summary judgment, pursuant to the mandate of Rule 12(b), Federal Rules of Civil Procedure.

The thrust of the motion of the defendants to dismiss is based upon three grounds. The first is that the complaint fails to state a cause of action upon which relief can be granted. The second is that judgments in the Supreme Court of Kentucky, Fayette Circuit Court and the United States District Court for the Eastern District of Kentucky bar or estop the plaintiffs from asserting this action. The third is that the Court lacks jurisdiction over the subject matter of the action.

In order to place the defendants' motion in proper context, it is necessary to discuss in some detail the actions referred to in the motion to dismiss. The first of these actions was brought on March 20, 1976, by the Bonding Association of Kentucky, Don Rigazio, doing business as AA Bonding, and Spencer Bonding Company, Inc. against David L. Armstrong, the Commonwealth's Attorney, in the Jefferson Circuit Court, Chancery Branch.

In that action, plaintiffs alleged that the Bail-bonding Act was unconstitutional and violative of the Fourteenth Amendment of the Constitution of the United States and the Constitution of Kentucky. In the course of that action, a class action order was entered by Judge Charles H. Anderson, stating that the action was to be maintained, pursuant to CR 23.02(1)(b), with the named parties-plaintiff as representatives of the class, consisting of all bail-bonding companies, bail-bondsmen and agents thereof licensed as such by the Commonwealth of Kentucky.

Subsequently, Judge Anderson entered a summary judgment for the bonding companies, holding the bail-bonding act unconstitutional. The Supreme Court of Kentucky reversed Judge Anderson's decision, and their opinion is found in Stephens v. Bonding Association of Kentucky, 538 S.W.2d 580 (Ky.1976). An appeal was taken to the Supreme Court of the United States, and an application for stay made, which was denied by Mr. Justice Potter Stewart. Also, it should be noted that the Supreme Court of Kentucky denied the motion of several professional bondsmen to exclude them from the class action and procedures.

An action was filed in the Fayette Circuit Court in March, 1976, by the Governor of Kentucky and its Attorney General against the Johnson Bonding Company, Frank Bell Bonding Company and Robert L. Robinson, a professional bondsman. The complaint sought a declaration from the Fayette Circuit Court that the Bail-bonding Act was constitutional. A motion to dismiss was filed by Johnson Bonding Company and a class action order was subsequently entered. After the judgment of the Supreme Court of Kentucky in Stephens v. Bonding Association of Kentucky, supra, the Fayette Circuit Court entered a summary judgment against the defendants holding that Senate Bill 254 was constitutional.

Finally, Johnson Bonding Company filed a complaint in the United States District Court for the Eastern District of Kentucky against the Governor and Attorney General of Kentucky and against the Commonwealth of Kentucky alleging that House Bill 254 deprives it of its right to contract as guaranteed by the Fourteenth Amendment of the United States Constitution, and violates its Fifth Amendment rights to liberty and property rights to follow their profession free from governmental interference. It is further alleged that 42 U.S.C. Sec. 1983 specifically provides for the right to contract, which is a property right and one of the rights, privileges and immunities secured to plaintiff by the constitutional laws of the United States. Other allegations not pertinent here are made as to violations of the Kentucky Constitution.

District Judge Siler, in an excellent and comprehensive opinion, found, in Johnson Bonding Company, Inc. v. Commonwealth of Kentucky, 420 F.Supp. 331 (E.D.Ky. 1976), held that the issues raised by plaintiff's complaint were constitutionally insubstantial and obviously without merit. He dismissed the action and no appeal was taken from his judgment. Also, in the Eastern District of Kentucky, another suit was filed on behalf of various bonding companies attacking the Act on the grounds that the Eighth and Fourteenth Amendments of the United States Constitution had been violated, as well as Kentucky Constitutional provisions, and also alleging that the Act contravened 42 U.S.C. Sec. 1983. A three-judge court was convened, and subsequently dismissed the action for lack of jurisdiction following the entry of Judge Siler's opinion. No appeal was taken from that judgment.

As can be observed from the above recital, Johnson Bonding Company has been a named-plaintiff or defendant in two suits which have already ruled that the Bail-bonding Act is constitutional. Furthermore, by virtue of the decision of the Supreme Court of Kentucky, the Bail-bonding Act was held constitutional as to all licensed bondsmen in Kentucky by virtue of the class action order entered by Judge Anderson. We note further that every allegation which is made by the plaintiffs here, with the exception of the allegations relating to the bill of attainder, has been raised in previous suits attacking the constitutionality of the Act. The principle is well established that where a state court rules on federal constitutional questions, the parties cannot maintain further action in the federal court. See Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947). Also, under the doctrine of res judicata or issue preclusion, the plaintiffs are prevented from raising constitutional questions which might or could have been raised in the state action. See Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946); Grubb v. Public Utilities of Ohio, 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972 (1930); and Boys Town, U.S.A. Inc. v. World Church, 349 F.2d 576 (9th Cir. 1965).

Furthermore, since the Jefferson Circuit Court action was a class action, the judgment rendered in Stephens v. Bonding Association of Kentucky, supra, applies to each and every member of the class and estops them from asserting the Federal Constitutional issues again.

While the question of a bill of attainder was not raised in the previous actions, it is apparent that it was an issue that could easily have been raised. Even if we assume, for purposes of argument, that the previous judgments do not bar the plaintiffs from raising the question in this action, it is obvious that plaintiffs have failed to state a cause of action with respect to the bill of attainder issue. A bill of attainder is a legislative act which levies punishment against specified individuals or groups of individuals without a judicial trial. See Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946); Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961).

The Bail-bonding Act of 1976 does not fall within the definition set out above, inasmuch as it does not pertain to specific organizations or individuals, but does describe classes of activities in which individuals and corporations shall not engage. The Act, thus, is distinguished from the Act described in United States v. Brown, 381 U.S. 437, 85...