Hernandez v. Danaher, 74 C 3473.

Citation405 F. Supp. 757
Decision Date19 December 1975
Docket NumberNo. 74 C 3473.,74 C 3473.
PartiesJuan HERNANDEZ, and Maria Hernandez, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. Matthew J. DANAHER, Clerk of the Circuit Court of Cook County, Individually and in his official capacity and on behalf of all other persons similarly situated, et al., Defendants.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

Fred Lieb, Alan Dockterman, of Legal Assistance Foundation of Chicago, James Latturner, Catherine Reichelderfer, of Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiffs.

Bernard Carey, State's Atty. for Cook County, William J. Scott, Atty. Gen. of Ill., and George L. Grumley, Sp. Asst. Atty. Gen., Chicago, Ill., for defendants.

Before PELL, Circuit Judge, and FLAUM and KIRKLAND, District Judges.

KIRKLAND, District Judge.

This matter comes before the Court on motion of defendants to dismiss the complaint for failure to state a claim upon which relief could be granted. Plaintiffs have cross-filed for summary judgment on entitlement to declaratory and injunctive relief. Further, on instruction by the Court, the parties briefed the issue of whether, in light of Huffman v. Pursue Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), this Court should enjoin a pending state attachment proceeding against plaintiffs prior to exhaustion of state judicial remedies.

The Illinois Department of Public Aid ("IDPA") filed suit in Circuit Court of Cook County, Illinois, on October 30, 1974, alleging that plaintiffs had fraudulently concealed the existence of monies while applying for and receiving public aid assistance. Simultaneous with filing of this suit, IDPA filed an attachment complaint which resulted in attachment of plaintiffs' funds in a credit union on November 5, 1974. After answering the complaint and filing their appearance, plaintiffs filed the instant complaint in federal court challenging the constitutionality of the Illinois Attachment Act and seeking declaratory, injunctive and other relief.

Jurisdiction is alleged under 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983. The complaint challenges the constitutionality of the Illinois Attachment Act, Ch. 11, §§ 1, 2, 2a, 6, 8, 10, and 14. The Act is alleged to be unconstitutional both on its face and as applied on grounds that it violates the due process clause of the Fourteenth Amendment to the United States Constitution.

Two issues are presented to this Court for decision: (1) does Huffman v. Pursue Ltd., supra, prevent this Court from intervening in a state civil proceeding filed pursuant to a state statute alleged to be unconstitutional; and (2) if the preceding question is answered in the negative, are the challenged portions of the Illinois Attachment Act unconstitutional?

I. MUST FEDERAL ACTION BE RESTRAINED PENDING EXHAUSTION OF STATE REMEDIES?

The Supreme Court in Huffman extended for the first time the doctrine of non-interference with state criminal proceedings, articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), to a civil proceeding. The remedy presently sought by plaintiffs would require this Court to enjoin a state court civil proceeding; hence we are constrained at the outset to examine the applicability of Huffman prior to any consideration of the merits of this case.

The only obstacle to reaching the merits of this case would be a determination that the principles articulated in Huffman apply here.

It is clear that this Court is empowered to enjoin state action under certain circumstances, notwithstanding the general prohibition against such injunctions found in 28 U.S.C. § 2283. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), held that the anti-injunction rule of Section 2283 does not apply to civil rights actions under 42 U.S.C. § 1983. Likewise, if the Illinois attachment proceeding were determined not to be "proceedings in a state court", the anti-injunction statute by its own terms would not apply. This Court holds the challenged attachment proceeding to be a pending proceeding within the meaning of Section 2283.

The Huffman case arose out of an attempt by the State of Ohio to close a theatre which showed allegedly obscene films, on grounds that the theatre was creating a public nuisance. The state proceeded under the Ohio nuisance statute, which defined a place exhibiting obscene films as a nuisance. The Ohio Court determined in an adversary proceeding that the films were obscene and immediately ordered that the theatre be closed. Following this decision, and without exhausting state appellate procedure, the theatre operator filed suit in federal court. A three-judge district court held that closing of the theatre by the Ohio State Court was violative of the plaintiff operator's constitutional rights because the films had not been declared obscene prior to their exhibition. The plaintiff operator had not exhibited any films after the determination that said films were obscene.

The Supreme Court vacated the order of the three-judge court on grounds of equity, comity, and federalism, holding that the principles of Younger v. Harris, supra, were applicable even though the state proceeding was civil in nature.

The Younger decision gave approval to long-standing policy that federal courts should not interfere with state criminal proceedings except in extraordinary circumstances. See Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1935); Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951). Younger specifically held that federal injunctive relief should not be employed against state criminal prosecutions except: (1) upon a showing of "irreparable injury" that is both "great and immediate"; or (2) where the statute in question is "flagrantly and patently violative of express constitutional prohibitions". 401 U.S. at 53, 91 S.Ct. at 755.

The decision in Huffman is significant in that it represents the first extension of these principles to non-criminal proceedings. In extending this doctrine, the Court stated that action of the State of Ohio was more akin to criminal proceedings than most civil cases. 95 S.Ct. 1208. This Court is of the opinion, however, that Huffman v. Pursue Ltd. is not applicable here for two reasons.

First, the rule of Younger was established for, and has been limited in application to, criminal proceedings. The Court's principal justification for extension of the Younger doctrine in Huffman was that Ohio's civil proceeding was "in aid of and closely related to criminal statutes". 95 S.Ct. 1208. In Huffman, the State of Ohio proceeded under a statute which gave an exclusive right of action to the state. By contrast, the Illinois Attachment Act provides a cause of action for any person, public or private. It is mere happenstance that the State of Illinois was the petitioner in this attachment proceeding. It is likewise coincidental that the pending state proceedings may arguably be quasi-criminal in nature; under the Illinois Attachment Act, they need not be. These major distinctions preclude this Court from extending the principles of Younger, based on considerations of equity, comity and federalism, beyond the quasi-criminal situation set forth in Huffman.

Second, an express exception to the Younger rule of non-interference in state criminal proceedings exists where the challenged statute is patently and flagrantly violative of the constitution. This Court is of the opinion that the present case falls within that exception, for reasons hereinafter set forth.

II. IS THE ILLINOIS ATTACHMENT ACT UNCONSTITUTIONAL?

Four recent Supreme Court cases are controlling authority in an analysis of constitutional validity of summary creditor remedies. These cases include Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 849, 21 L.Ed.2d 771 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); and North Georgia Finishing Inc. v. Di-Chem Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 753 (1975).

In Sniadach v. Family Finance Corp., supra, the Court held that a Wisconsin pre-judgment garnishment procedure which resulted in garnishment of wages without notice and prior hearing, violated fundamental principles of due process.

In Fuentes v. Shevin, supra, the Supreme Court examined the replevin acts of Florida and Pennsylvania. Both acts authorized the issuance of pre-judgment writs of replevin through a summary process of ex parte application to the court clerk, accompanied by the posting of bond for an amount in excess of the property's value. Neither act provided for notice and prior hearing or an immediate post-seizure hearing. Both acts did permit the respondent to recover his replevied property upon posting of a bond in double the amount of its value. The Court held that procedural due process required that a person in possession of chattels be given an opportunity for a hearing prior to issuance of a writ of replevin. The Court further held that posting of a bond was a minimal deterrent to abusive or even good faith use of the replevin procedure and constituted no substitute for a pre-seizure hearing.

In Mitchell v. W. T. Grant Co., supra, the Supreme Court carved out an exception to the pre-seizure hearing rule promulgated in Sniadach and Fuentes. There the Court upheld the validity of a Louisiana sequestration act which authorized sequestration of encumbered property upon ex parte application of a creditor without notice to the debtor or opportunity for prior hearing. The Court found, however, that the Louisiana act did provide safeguards not present in those statutes analyzed in Sniadach and Fuentes.

First, the Louisiana act required the creditor to file an affidavit before a judge, setting forth factual rather...

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