Briere v. Agway, Inc.

• Decision Date: 12 January 1977
• Docket Number: Civ. A. No. 76-41.
• Citation: 425 F. Supp. 654
• Parties: Claude BRIERE and Gladys Briere v. AGWAY, INC. and Stanley T. Williamson, Sr.
• Court: U.S. District Court — District of Vermont

425 F. Supp. 654

Claude BRIERE and Gladys Briere v. AGWAY, INC. and Stanley T. Williamson, Sr.

Civ. A. No. 76-41.

United States District Court, D. Vermont.

January 12, 1977.

Jon R. Eggleston and David M. Yarnell, Kissane & Heald Associates, St. Albans, Vt., for plaintiffs.

Lawrence Miller and A. Hays Butler, Miller & Norton, Rutland, Vt., for defendant Agway, Inc.

Philip J. Fitzpatrick, Jeffersonville, Vt., for defendant Stanley T. Williamson, Sr.

Before OAKES, Circuit Judge, and HOLDEN and COFFRIN, District Judges.

COFFRIN, District Judge.

This action, brought pursuant to 42 U.S.C. § 1983,¹ challenges the constitutionality of Rule 4.1² of the Vermont Rules of Civil Procedure and its companion statute, 12 Vt.Stat.Ann. §§ 3251-52,³ insofar as they provide for the nonpossessory prejudgment attachment of personal property.⁴ Because this suit seeks to enjoin the operation of a state statute on the ground of unconstitutionality, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284.⁵ Issues other than the question of constitutionality remain for later resolution by a single judge.

The facts as derived from stipulations of the parties and brief testimony at the hearing are as follows:⁶

Plaintiffs, Claude and Gladys Briere, are residents of the Town of Cambridge, Lamoille County, Vermont, and are the owners of certain real and personal property there. Much of that property, both real and personal, was employed in the operation of a dairy farm in Cambridge. The value of the personal property according to the testimony of plaintiff Claude Briere was approximately $40,000.

Agway, Inc. ("Agway") filed suit in Vermont Superior Court on September 18, 1975, against the plaintiffs herein and Loren and Dianne Rogers, alleging a debt due to it in the amount of $4,618.81. That sum represents certain purchases of grain and other farm supplies, charged to the account of Loren Rogers, and the service charges assessed to the same account.⁷

The Brieres made plans to sell much of the property in question at a "farm auction" which was advertised in a local newspaper. After the appearance of the advertisement, but prior to the date of the farm auction, which was to be held on September 19, 1975, a representative of Agway made demand on Claude Briere for the sum alleged to be owing. Mr. Briere informed the representative that he had not made the purchases giving rise to the debt and that, if any debt had been incurred, it was the responsibility of Loren and Dianne Rogers.

On or about September 18, 1975, Agway's attorney, Richard L. Seymour, delivered to defendant Stanley T. Williamson, Constable for the Town of Cambridge, a writ of attachment that had been prepared and signed by Mr. Seymour and another attorney,⁸ in accordance with Vt.R.Civ.P. 4.1(a), (b)(1), and (c). The writ of attachment was directed to all real and personal property, to the value of $6,000, belonging to the four defendants in the Superior Court suit. At the request of Mr. Seymour, defendant Williamson then formally recorded the writ of attachment in accordance with 12 Vt.Stat. Ann. § 3252. After the recording, Mr. Seymour drove defendant Williamson to the Brieres' farm where he served the Brieres with copies of the summons, complaint and writ of attachment in the Superior Court action. At no time prior to the attachment was the probable validity of Agway's claim against plaintiffs reviewed by any judicial officer of the State of Vermont, nor were plaintiffs provided with notice and an opportunity to be heard.

On September 19, 1975, the day of the Brieres' farm auction, Mr. Seymour met defendant Williamson, drove him to the farm auction and prepared a statement for him to read at the auction. The statement, to the general effect that all property to be sold at the auction was subject to a writ of attachment, was read by Mr. Williamson to those in attendance.⁹ Plaintiffs claim that by virtue of the alleged unconstitutional attachment and the actions of Agway through its attorney and Mr. Williamson, they were unable to receive a full return upon their personal property sold at auction.

This same three-judge Court has had occasion to rule on the procedures in question as they apply to real estate attachments.¹⁰ In Terranova v. AVCO Financial Services, Inc., 396 F.Supp. 1402 (D.Vt.1975), we held that Vt.R.Civ.P. 4.1¹¹ and 12 Vt.Stat.Ann. §§ 3291-92, which provide procedures for the attachment of real estate, were violative of the due process clause of the fourteenth amendment and that their continued enforcement should be enjoined. Both defendants would have us reconsider the reasoning of Terranova. If we are disinclined to do so, defendants urge that we should distinguish between realty and personalty as they are affected by nonpossessory attachments. Defendant Agway also suggests that the Court should abstain from deciding this matter.¹²

The suggestion that this Court should abstain is based on the holdings of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Younger articulated a "national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances," 401 U.S. at 41, 91 S.Ct. at 749, in the context of a suit to enjoin a pending state criminal proceeding.¹³ Huffman extended the doctrine of Younger to apply to a civil case that was "more akin to a criminal prosecution than are most civil cases," 420 U.S. at 604, 95 S.Ct. at 1208, but left open the question of the propriety of abstention based on Younger in the case of civil litigation involving private parties. In such case, the rationale of Younger, to the extent that it relies on the traditional reluctance of courts to interfere with a criminal prosecution in another court, is less persuasive.

It is clear that in the case at bar the plaintiffs are seeking to enjoin neither a state criminal proceeding nor a proceeding even remotely analogous to a criminal action. Thus, the branch of the Younger-Huffman rationale described above does not apply in this case. Further, a finding of unconstitutionality in this case would not perforce lead to a substantial interference with the pending processes of the Vermont Superior Court; rather, the state litigation may continue without interruption. A decision of unconstitutionality in this case will simply require the dissolution of the writ of attachment, which, according to the law of Vermont, is prepared and executed without any participation on the part of any judicial official. Another factor that was of import in Younger and Huffman — avoidance of duplication of proceedings — does not militate against deciding the case at hand. See Huffman, supra, 420 U.S. at 608, 95 S.Ct. 1200. Here there will be no duplication of proceedings if we do not abstain.¹⁴

In sum, we do not think this case to be appropriate for abstention on the basis of Younger and Huffman, because this proceeding is entirely civil in nature, and does not directly interfere in the judicial processes of the State of Vermont.¹⁵ "Such an immediate and continuing curtailment of a constitutionally cognizable property interest as is involved here raises serious federal constitutional questions and deserves prompt consideration on the merits." United States General, Inc. v. Arndt, 417 F.Supp. 1300, 1310 (E.D.Wis.1976).

Although defendants have not argued on the basis of Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976), it is appropriate that we discuss that case because of its apparent similarity to the case at bar. Carey involved a constitutional attack on the New York statute providing for the prejudgment attachment of real estate. The Supreme Court held that the New York courts could interpret the statute so as to obviate any constitutional infirmities. Relying on the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the Court directed a three-judge court to abstain from decision until the parties had had an opportunity to obtain a construction of the New York law from the New York courts.¹⁶ We find it significant that Younger and Huffman were not cited in Carey and are inclined to construe the absence of discussion of these cases in Carey as implying the general lack of application of their dogma to cases such as this.

Further, the holding of Carey does not control in this litigation. Carey employed Pullman abstention where an interpretation of the statute's post-attachment hearing procedure might cure the statute's constitutional defect. An appropriate interpretation of the post-attachment hearing procedure was capable of saving the New York statute from unconstitutionality because other constitutional protections already existed in the New York attachment procedures. The procedures provide that the order of attachment must issue from a judge based on an affidavit or other written evidence of the debt and after an undertaking is given by the plaintiff. Carey, supra, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587; see Mitchell v. W. T. Grant Co., 416 U.S. 600, 605-06, 609-10, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). Vermont's statute has no such protections. Here, although a minor portion of our decision may be based on an interpretation of Vt.R.Civ.P. 4.1(e), which corresponds to the statute at issue in Carey, no conceivable interpretation of that portion of Rule 4.1 or the Rule as a whole will remedy its constitutional infirmities.¹⁷

The major thrust of the argument of both defendants on the merits is that the decision of this Court in Terranova v. AVCO Financial Services, Inc., 396 F.Supp. 1402 (D.Vt.1975), is incorrect. In presenting their cause, defendants argue the difference between possessory and nonpossessory attachments. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U.S....