Davis v. Weir, 73-3050.

Decision Date18 July 1974
Docket NumberNo. 73-3050.,73-3050.
Citation497 F.2d 139
PartiesWillie DAVIS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, George Lynch, Lillie Ruth Taylor and Evelyn White, Intervenors-Appellees, v. Paul WEIR, General Manager, Atlanta Department of Water Works, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit


Henry L. Bowden, Thomas F. Choyce, Henry R. Bauer, Jr., Atlanta, Ga., for defendants-appellants.

Jay E. Loeb, Michael H. Terry, Alden C. Harrington, Atlanta, Ga., for plaintiffs-appellees.

Before GEWIN, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Despite the fact that Willie Davis was current in his rental payments, which included water charges, the City of Atlanta Department of Water Works terminated his water service without prior notice. Defective plumbing at the residence had resulted in an exorbitant waste of water and Davis' landlord, whose agent had been notified of the charges, had refused to pay the water bill.1 When the Water Works declined to restore service until the bill was paid, Davis brought this Section 1983 individual and class action on behalf of all consumers of water service from the City against Paul Weir, General Manager of the Department, and other elected City officials, seeking (1) a declaration that Atlanta ordinances, which authorize the Water Works to terminate service at an address without notice to the actual user because of nonpayment of a past due account2 and to refuse to reinstate such service or open a separate service account with the consumer until the arrears are fully discharged,3 contravene the due process and equal protection clauses of the XIV Amendment and (2) an injunction against the defendants prohibiting such practices.

At a preliminary hearing the district court denied plaintiff's request for a temporary injunction after the landlord agreed with the Water Works to repair the defective plumbing and to pay the outstanding water bill. The Department restored service to the premises but continued to maintain the account for and to bill all service charges to the landlord. Subsequently, the arrangement broke down, and the Water Works threatened to discontinue service again. After the Water Works denied his individual application for water service at the apartment, Davis sought an accounting for the charges incurred after December 18, the on-set of this litigation. The Water Works rejected his request and, while conceding Davis' nonliability for the account, reiterated its intention to terminate his service unless the total bill was discharged. Upon condition that Davis settle the charges which had accrued under the December agreement, the district court temporarily enjoined the defendants not to terminate Davis' water service and to contract directly with him thereafter for such service. Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971).4 In addition, Evelyn White, Lillie Ruth Taylor and George Lynch were later permitted to intervene as plaintiffs after the Water Department had rejected their individual applications and threatened to cease service for similar nonpayment of third parties. Thereafter, the district judge ruled that the cause could proceed as a class action pursuant to Fed.R.Civ.P. 23(a) and (b)(2) and extended the grant of individual injunctive relief to the class consisting of "users of water furnished by the City of Atlanta, Department of Water Works who do not have a contract with the city for water service in their own names."

Upon reaching the merits the district court granted plaintiffs and the class declaratory and permanent injunctive relief, holding Atlanta City Ordinance Section 33-129, which provides for "three days' notice to the owner or tenant" prior to termination, violative of the due process clause of the XIV Amendment since it does not affirmatively require pre-termination notice to the actual consumer. Furthermore, resorting to the traditional "rational basis" test, the court found that the Water Works' refusal to contract for service at buildings saddled with the debt of a third-party, as authorized by City Ordinance Section 33-130 and Section 7.6.16 of the City Charter and Related Laws, coerced otherwise eligible applicants into paying water bills for which they were not liable and deprived them of the equal protection of the laws guaranteed by the XIV Amendment. Finally, invoking Fed.R.Civ.P. 23(c)(1), the court amended its prior order to redefine the class of plaintiffs as "all present and future non-commercial users of water service provided by the City of Atlanta Department of Water Works." Davis v. Weir, 359 F.Supp. 1023 (N.D.Ga.1973).5

The Constitutional Issue

Conceding on appeal that due process demands pre-termination notice to the actual user, see, e. g., Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), defendants focus on the propriety of refusing service because of a third-party debt and the appropriateness of this controversy for class action treatment. The Water Works contends that (1) the right to water service is not a fundamental right and therefore no federal or constitutional wrong has occurred which would supply the necessary predicate for Section 1983 relief; (2) state law makes payment of all outstanding charges incurred at a given location a valid condition precedent for continued or renewed water service there, because such a debt creates a lien against the property; (3) the practice of denying service is essential to enforce collection of water charges at multi-unit dwellings with a single water meter and to protect the City's municipal revenue bond rating. In addition, defendants argue that this litigation is an inappropriate vehicle for a class determination since the court below could resolve the constitutional issues and grant appropriate relief just as well in an individual proceeding and Davis' claims are not typical of those of the entire class as ultimately defined.

There is no controversy over whether the defendants have acted under color of state law within the purview of Section 1983 or whether their activities constitute state action within the prophylactic ambit of the XIV Amendment. See, e. g., Jackson v. Metropolitan Edison Company, 483 F.2d 754 (3d Cir. 1973); Palmer v. Columbia Gas Company, 479 F.2d 153 (6th Cir. 1973); Lucas v. Wisconsin Electric Power Company, supra. The Water Works is a department of the municipal government of the City of Atlanta admittedly subject to the proscriptions of the constitutional and statutory provisos. Neither is the constitutional sufficiency of the Department's administrative procedures prior to termination any longer at issue.6 This appeal is pointedly cast to present the rights of applicants for water service.

We conclude that the Department's discriminatory rejection of new applications for water service based on the financial obligations of third parties fails to pass XIV Amendment muster under the traditional "rational basis" analysis. Therefore, there is no need to decide whether the Constitution accords citizens a fundamental right to municipal water service. That question would be relevant only to the propriety of invoking strict equal protection judicial scrutiny of defendants' actions in conformity with the "compelling state interest" rationale, see, e. g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 941 (1970).

The plaintiffs do not contend that they are entitled as a matter of right to free water service, or that an application for such service cannot be made subject to the payment of installation or metering charges or the posting of a security deposit.7 Their complaint is that the Water Works has divided those who apply for its services into two categories: applicants whose contemplated service address is encumbered with a pre-existing debt (for which they are not liable) and applicants whose residence lacks the stigma of such charges. Although there is nothing in these definitions, standing alone, to distinguish either group as a better or worse credit risk, the Department only furnishes its services to the latter class.

The Supreme Court has consistently recognized that

"the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. . . . The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.\' Royster Guana Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L. Ed. 989 (1920)."

Reed v. Reed, 404 U.S. 71, 75-76, 92 Ct. 251, 253-254, 30 L.Ed.2d 225 (1971) (citation omitted).

"Under `traditional' equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest." United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973). The Water Works urges that the practice of rejecting water service applications until all accrued debts at the premises have been extinguished facilitates collection of unpaid bills at multi-unit dwellings and preserves the City's municipal revenue bond rating. No one could doubt that the Department's methods are calculated to expedite the liquidation of unpaid bills. A collection scheme,...

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