Holladay v. Roberts

• Decision Date: 06 January 1977
• Docket Number: No. EC 76-114-K.,EC 76-114-K.
• Citation: 425 F. Supp. 61
• Parties: Frank HOLLADAY, on behalf of himself and all others similarly situated, Plaintiff, v. Keith ROBERTS et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

425 F. Supp. 61

Frank HOLLADAY, on behalf of himself and all others similarly situated, Plaintiff, v. Keith ROBERTS et al., Defendants.

No. EC 76-114-K.

United States District Court, N. D. Mississippi, E. D.

January 6, 1977.

COPYRIGHT MATERIAL OMITTED

James D. Waide, III, West Point, Miss., for plaintiff.

Peter Stockett, Asst. Atty. Gen., Jackson, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

Plaintiff in this action seeks to recover damages resulting from the alleged confiscation of his automobile by the Alcoholic Beverage Control Division of the State Tax Commission of Mississippi (ABC). Specifically, plaintiff claims that the Mississippi statutes¹ providing for the seizure and forfeiture of automobiles used in connection with violations of state liquor laws are violative of the procedural due process requirements of the Fourteenth Amendment to the United States Constitution, and that confiscation of his automobile pursuant to these statutes entitles him to monetary relief.² Defendants have moved to dismiss the complaint on several grounds.

Accepting the well-pleaded allegations of the complaint as true for the purposes of this motion, Spector v. L. Q. Motor Inns, Inc., 517 F.2d 278 (5 Cir. 1975), Hargrave v. McKinney, 413 F.2d 320 (5 Cir. 1969), the facts appear as follows:

On December 12, 1973, various law enforcement officers executed a search warrant on the residence of plaintiff's son, which is located in the Houston Judicial District of Chickasaw County, Mississippi. Among the places and things searched at that time was plaintiff's automobile. Upon discovery that the trunk of the automobile contained alcoholic beverages, the possession of which is illegal in that district, the officers contacted the defendant ABC, which then, acting actively or constructively through its director, defendant Garner, dispatched its agent, defendant Roberts, to the site to seize plaintiff's car. Roberts proceeded to seize the car, and since that time plaintiff has been given no notice of a hearing, or a hearing, on the forfeiture of his automobile. The alcoholic beverages contained in the trunk of plaintiff's automobile were placed there by plaintiff's lessee, without knowledge or consent of plaintiff.

I JURISDICTION

Defendants contend that the court lacks subject matter jurisdiction of this action under 28 U.S.C. §§ 1331 and 1343. The basis of this contention as to § 1343 is that that statute grants jurisdiction only of "civil actions authorized by law"

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage of any right, privilege or immunity secured by the Constitution of the United States . . .;

and that plaintiff's failure to spell out in his complaint that he is asserting a claim under 42 U.S.C. § 1983, the "authorization by law" for the claim, therefore deprives the court of subject matter jurisdiction under § 1343. This defect in plaintiff's jurisdictional allegation is hardly fatal; jurisdiction may be sustained if it is granted by a federal statute even though the statute is not pleaded, Paynes v. Lee, 377 F.2d 61 (5 Cir. 1967). Even a cursory reading of the complaint here reveals that 42 U.S.C. § 1983-28 U.S.C. § 1343(3) jurisdiction is proper as to the individual defendants.

The basis of defendants' contention that no jurisdiction of this claim exists under 28 U.S.C. § 1331 is that the courts of Mississippi are available to plaintiff for pursuit of his claim for relief. There is obviously no merit to the argument that a person asserting a cause of action based on violation of a right secured by the Constitution of the United States must resort to a state forum. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed.2d 939 (1946). Clearly, 28 U.S.C. § 1331 provides federal court jurisdiction of the Fourteenth Amendment claim against the defendant ABC. See Sartin v. Columbus Utilities Commission, 421 F.Supp. 393 (N.D.Miss. 1976).

II DUE PROCESS

Defendants' position that the complaint fails to state a cause of action in that it fails to adequately allege a constitutional violation is, in effect, an assertion that the Mississippi statutes authorizing seizure and forfeiture of vehicles connected with violations of state liquor laws satisfy Fourteenth Amendment due process requirements. This position is correct to the extent that forfeiture laws consistently have been held not to violate the due process prohibition against the "taking" of private property by the state without just compensation. These laws have withstood constitutional attack even where they provide for forfeiture of property used in or connected with criminal activity without the consent or knowledge of its owner, at least where the owner voluntarily has entrusted his property to the person using it in violation of the forfeiture law.³E. g., Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354 (1926); United States v. One 1970 Buick Riviera, 463 F.2d 1168 (5 Cir. 1971). A totally distinct question, however, is presented as to whether the procedures adopted by a state for effectuating the forfeiture of personal property connected with criminal conduct comport with procedural due process.

It cannot be disputed that the "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society," Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817, 852 (1951) (Frankfurter, J., concurring). Clearly, then, the failure of a state to provide opportunity for a hearing either before or after seizure of private property violates Fourteenth Amendment due process requirements, Watters v. Parrish, 402 F.Supp. 696 (W.D.Va.1975); Seals v. Nicholl, 378 F.Supp. 172 (N.D.Ill.1973). Normally, due process prohibits outright seizure without opportunity for a prior hearing, but "there are `extraordinary situations' that justify postponing notice and opportunity for a hearing," Fuentes v. Shevin, 407 U.S. 67, 90, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556, 575 (1972). Seizure for forfeiture presents such an "extraordinary situation," allowing post-seizure hearing, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), but the hearing still must be "at a meaningful time and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66 (1965).

A further

elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1949). Reasonable notice where an interested person's name and address is known or is easily obtainable is individual notice, see Mullane, supra, 339 U.S. at 318, 70 S.Ct. 652, 94 L.Ed. at 875. "Therefore, due process would appear to require in most instances that owners 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 court).

The constitutionality of the procedures provided by the Mississippi statutes in question, Miss.Code Ann. §§ 67-1-17, and 99-27-11 and -13 (1972),⁴ must be determined by the foregoing standards. The procedure provided by § 67-1-17, and that provided by §§ 99-27-11 and -13, involve different considerations, and the statutes therefore are dealt with separately for the purposes of this motion to dismiss.

A. Section 67-1-17

This section provides:⁵

It shall be unlawful for any person to have or possess either alcoholic beverages or personal property intended for use in violating the provisions of this chapter, or regulations prescribed under this chapter, or Chapter 31 of Title 97, Mississippi Code of 1972. No property rights shall exist in any such personal property or alcoholic beverages. All such personal property and alcoholic beverages shall be seized and forfeited to the State of Mississippi.

When a seizure is made under this section the seizing officer shall store the property for the commission and furnish the commission with an inventory as soon as practicable after seizure. The commission is herewith authorized to offer for sale and sell the seized property to the highest bidder, such bidder being any person, firm, or government agency residing or located where sales of such property are legal and the bidder is authorized to purchase the property. The offer for sale shall be made to not less than three qualified prospective buyers, by mailing them an invitation to bid which shall describe the property, terms of sale, method of delivery, manner of bidding, and fixing a time of not more than fifteen days from the date of invitation for opening of bids received by the commission.

All bids and payment shall be made in the manner as prescribed by the commission. Bids after opening shall be subject to public inspection.

If no satisfactory bids are submitted, or if only a part of the property is sold, the balance remaining unsold may be destroyed by the seizing officer or written orders from the commission. Any consumables other than alcoholic beverages seized pursuant to this section may, on written orders from the commission, be donated to a public institution of the State of Mississippi for use by said institution.

Defendants, on one hand, glibly assert that as to this statute, no claim has been stated upon which relief can be granted as the statute "provides for seizure and sale of personal property intended for use in violating the provisions of the laws without the necessity of a hearing." (Emphasis added). On the other hand, defendants...