Fell v. Armour, Civ. A. No. 6367.

CourtU.S. District Court — Middle District of Tennessee
Writing for the CourtMILLER, Circuit , GRAY, , and MORTON
Citation355 F. Supp. 1319
Decision Date27 November 1972
Docket NumberCiv. A. No. 6367.
PartiesBillie Joyce FELL, Individually and on behalf of all other persons similarly situated v. Claude ARMOUR, Commissioner, Tennessee Department of Safety, et al.

355 F. Supp. 1319

Billie Joyce FELL, Individually and on behalf of all other persons similarly situated
v.
Claude ARMOUR, Commissioner, Tennessee Department of Safety, et al.

Civ. A. No. 6367.

United States District Court, M. D. Tennessee, Nashville Division.

November 27, 1972.


355 F. Supp. 1320
COPYRIGHT MATERIAL OMITTED
355 F. Supp. 1321
COPYRIGHT MATERIAL OMITTED
355 F. Supp. 1322
Paul M. Geier, Rita S. Geier, Legal Services of Nashville, Inc., Walter C. Kurtz, Nashville, Tenn., for plaintiff

Charles W. Cherry (resigned 10/17/72), Asst. Atty. Gen., Bart Durham, Asst. Atty. Gen., David M. Pack, State's Atty. Gen., State of Tennessee, Nashville, Tenn., for defendants.

Before MILLER, Circuit Judge, GRAY, Chief District Judge, and MORTON, District Judge.

355 F. Supp. 1323

MORTON, District Judge.

Plaintiff brings this suit as a class action challenging the constitutionality of various provisions of the Tennessee Drug Control Act of 1971, T.C.A. §§ 52-1408—52-1448, and by incorporation T.C.A. §§ 52-1404—52-1407. Plaintiff seeks injunctive relief authorized by 42 U.S.C. § 1983 and declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure.

Jurisdiction is conferred on this Court by 28 U.S.C. § 1343(3) and (4) which provide for original jurisdiction in United States district courts of suits authorized by 42 U.S.C. § 1983. This three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284.

Plaintiff is the registered owner of a 1969 Opel station wagon. On or about August 7, 1971, a sale of marihuana was made from plaintiff's Opel station wagon to an undercover officer of the Knoxville Police Department. Plaintiff asserts that she had loaned the vehicle to her boyfriend on August 7, 1971, and that she had no knowledge that a sale of marihuana would be made from her vehicle by a third person.

After the sale of marihuana from plaintiff's vehicle, the Knoxville Police Department placed plaintiff's Opel station wagon on a list of automobiles to be seized for violation of the Tennessee Drug Control Act of 1971 (hereinafter sometimes "the Act"). The applicable provisions of the Act are set out in the Appendix to this opinion. On September 23, 1971, while plaintiff was driving her Opel station wagon on a Knoxville street, a Knoxville policeman stopped plaintiff and seized her car. No formal notice was given to plaintiff as to the reason for the seizure, the procedure by which she might file a claim for the recovery of her automobile, the time period in which her claim must be filed, or the penalty for failure to file within the time period of the Act. Plaintiff learned of the procedure and time period for filing a claim for recovery and filed a claim within the ten-day period of the Act. Plaintiff was allowed to proceed in forma pauperis at the hearing before the Commissioner of Safety and was not required to post the $250 cost bond, which under the statute is a condition precedent to the hearing. However, the Commissioner of Safety refused to issue subpoenas on behalf of plaintiff. At this hearing, authorized by T.C.A. § 52-1443(i) and §§ 52-1404—52-1407, the authorized representative of the Commissioner of Safety ordered the automobile returned to plaintiff.

Plaintiff filed this suit in federal court on November 8, 1971, the same date as, but prior to, the hearing authorized by the Act, and prior to the return of her vehicle.

This Court issued a temporary restraining order on July 27, 1972, temporarily restraining and enjoining defendants from selling vehicles which have been or will be seized and held pursuant to and by operation of T.C.A. §§ 52-1404, 52-1406, 52-1443(a)(4)(B), 52-1443(b), 52-1443(b)(4), 52-1443(i), and 52-1444(a), pending the decision of this Court on the merits.

Plaintiff asks this Court to:

(1) issue a permanent injunction enjoining defendants Claude Armour, Joe Fowler, Winfield Dunn, David Pack, their agents, and all others acting in concert with them from enforcing, operating and executing the Tennessee Drug Control Act of 1971, T.C.A. §§ 52-1443 (a)(4)(B), 52-1443(b), 52-1443(b)(4), 52-1443(i), and 52-1444(a), and T.C.A. §§ 52-1404 and 52-1406 incorporated therein, as against plaintiff and all other persons similarly situated;

(2) declare pursuant to 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure that the Tennessee statutes cited herein are unconstitutional on their face and as applied to plaintiff and all others similarly situated in that they violate the Fourth and Fourteenth Amendments to the Constitution of the United States;

355 F. Supp. 1324

(3) award monetary damages to the plaintiff and all other persons similarly situated to compensate for the inconvenience and expense to them caused by the seizure of their conveyances pursuant to said statutes in an amount yet to be determined and punitive damages in the amount of Five Hundred Dollars ($500.00) for plaintiff and each other person similarly situated;

(4) order the return of plaintiff's vehicle and vehicles of all other persons similarly situated; and

(5) grant to plaintiff and all other persons similarly situated such additional and further relief as is just, proper and equitable.

Plaintiff makes the following challenges to the Act:

(a) The statutory scheme violates the Fourth and Fourteenth Amendments by allowing for the warrantless seizure not incident to an arrest of a conveyance.

(b) The statutory scheme does not provide for notice and hearing prior to seizure of conveyances, and amounts to a deprivation of property without due process as forbidden by the Fourteenth Amendment.

(c) The statutory scheme does not meet Fourteenth Amendment minimal due process standards since it has no provision for notice to the owner of a seized vehicle that it has been seized, the reasons for seizure, the method to challenge such seizure, and the penalty for failure to file a claim within ten (10) days.

(d) The statutory scheme places the burden of proof on the claimant in the hearing before the Commissioner of Safety in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

(e) The cost bond requirement of the statutory scheme violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Defendants, in their Trial Brief filed April 28, 1972, at 2, 3 and 4, argue that the Court should abstain from deciding the constitutional issues presented by the complaint. Defendants urge the Court to abstain in order to serve "two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling of some delicate balance in the area of federal-state relationships." Defendants' Trial Brief, at 4.

As to the interest of not unsettling any delicate federal-state relationship, the defendants submit "that the federal courts should abstain (a) if a State action is pending and (b) until the State courts have been given the opportunity to authoritatively construe the statute in question." Defendants' Trial Brief, at 4.

The Court holds that the doctrine of abstention should not be applied in this case.

"`. . . Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit.'" Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967), quoting from United States v. Livingston, 179 F.Supp. 9, 12, 13 (E. D.S.C.1959), aff'd 364 U.S. 281, 80 S. Ct. 1611, 4 L.Ed.2d 1719 (1960).

"Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim." Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971).

Defendants have informed the Court of no case pending before a state court which presents the same constitutional issues presented to this Court. Nor have defendants informed this Court of any case pending before a state court

355 F. Supp. 1325
the determination of which would obviate the necessity of deciding the serious constitutional issues presented to this Court.1 See, Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). "Abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim." Zwickler v. Koota, supra, 389 U.S. at 251, 88 S.Ct. at 397. See also Wisconsin v. Constantineau, supra, 400 U.S. at 439, 91 S. Ct. 507

The Court finds that all the requirements of Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure have been met and that plaintiff is a proper representative of a class consisting of all those persons who have had or will have conveyances owned by them seized pursuant to the authority of the Tennessee Drug Control Act of 1971.

SEIZURE OF CONVEYANCE WITHOUT A WARRANT AND NOT INCIDENT TO AN ARREST

The authorities cited by plaintiff for the proposition that a warrant should be obtained prior to the seizure of a conveyance for alleged use in violation of the Tennessee Drug Control Act of 1971 are persuasive. This is true particularly where no emergency situation or exigent circumstances exist. As to the seizure of plaintiff's automobile, it would appear that no emergency situation or exigent circumstances existed that would in a practical sense require that the probable cause issue not be presented to a judicial official. See discussion as to desirability of warrant in Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962).

The Court finds it desirable that a warrant be obtained prior to seizure...

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20 practice notes
  • In re Forfeiture of 2000 GMC Denali & Contents, Docket No. 328547.
    • United States
    • Court of Appeal of Michigan (US)
    • August 2, 2016
    ...S.Ct. 610, 88 L.Ed.2d 587 (1986).7 Latin for "in the manner of a pauper[.]" Black's Law Dictionary (10th ed.).8 See also Fell v. Armour, 355 F.Supp. 1319, 1333–1334 (M.D.Tenn., 1972) (holding that a Tennessee forfeiture statute containing no waiver of the bond requirement for indigents chal......
  • Holladay v. Roberts, No. EC 76-114-K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • January 6, 1977
    ...of vehicles seized pursuant to the Act be afforded timely and adequate personal notice of the proposed forfeiture," Fell v. Armour, 355 F.Supp. 1319, 1328 (M.D.Tenn.1972) (three-judge The constitutionality of the procedures provided by the Mississippi statutes in question, Miss.Code Ann. §§......
  • Resek v. State, No. S-205
    • United States
    • Supreme Court of Alaska (US)
    • August 30, 1985
    ...One Reel of 35 MM Color Motion Picture Film, 369 F.Supp. 1082, 1084 (E.D.N.Y.1972), aff'd, 491 F.2d 956 (2d Cir.1974); Fell v. Armour, 355 F.Supp. 1319, 1329 (M.D.Tenn.1972); State v. One 1978 Chevrolet Corvette, 8 Kan.App.2d 747, 667 P.2d 893, 896 (1983). Because the criminal nature figure......
  • Com. v. Landy
    • United States
    • Superior Court of Pennsylvania
    • April 22, 1976
    ...States, 377 F.2d 408 (8th Cir.1967); One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467 (8th Cir.1966); Fell v. Armour, 355 F.Supp. 1319 (M.D.Tenn.1972); State v. One Certain Conveyance, 1971 Honda 350, 211 N.W.2d 297 (Iowa 1973). See generally, 28 C.J.S. Drugs and Narcotics ......
  • Request a trial to view additional results
20 cases
  • In re Forfeiture of 2000 GMC Denali & Contents, Docket No. 328547.
    • United States
    • Court of Appeal of Michigan (US)
    • August 2, 2016
    ...S.Ct. 610, 88 L.Ed.2d 587 (1986).7 Latin for "in the manner of a pauper[.]" Black's Law Dictionary (10th ed.).8 See also Fell v. Armour, 355 F.Supp. 1319, 1333–1334 (M.D.Tenn., 1972) (holding that a Tennessee forfeiture statute containing no waiver of the bond requirement for indigents chal......
  • Holladay v. Roberts, No. EC 76-114-K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • January 6, 1977
    ...of vehicles seized pursuant to the Act be afforded timely and adequate personal notice of the proposed forfeiture," Fell v. Armour, 355 F.Supp. 1319, 1328 (M.D.Tenn.1972) (three-judge The constitutionality of the procedures provided by the Mississippi statutes in question, Miss.Code Ann. §§......
  • Resek v. State, No. S-205
    • United States
    • Supreme Court of Alaska (US)
    • August 30, 1985
    ...One Reel of 35 MM Color Motion Picture Film, 369 F.Supp. 1082, 1084 (E.D.N.Y.1972), aff'd, 491 F.2d 956 (2d Cir.1974); Fell v. Armour, 355 F.Supp. 1319, 1329 (M.D.Tenn.1972); State v. One 1978 Chevrolet Corvette, 8 Kan.App.2d 747, 667 P.2d 893, 896 (1983). Because the criminal nature figure......
  • Com. v. Landy
    • United States
    • Superior Court of Pennsylvania
    • April 22, 1976
    ...States, 377 F.2d 408 (8th Cir.1967); One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467 (8th Cir.1966); Fell v. Armour, 355 F.Supp. 1319 (M.D.Tenn.1972); State v. One Certain Conveyance, 1971 Honda 350, 211 N.W.2d 297 (Iowa 1973). See generally, 28 C.J.S. Drugs and Narcotics ......
  • Request a trial to view additional results

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