Holt v. Brown

• Decision Date: 29 October 1971
• Docket Number: No. 6838.,6838.
• Citation: 336 F. Supp. 2
• Parties: Larry HOLT et al., etc., Plaintiffs, and Louisville Tenants Union, Inc., Intervening Plaintiff, v. C. Maxwell BROWN et al., Defendants. and Louisville Board of Realtors, Intervening Defendant.
• Court: U.S. District Court — Western District of Kentucky

336 F. Supp. 2

Larry HOLT et al., etc., Plaintiffs, and Louisville Tenants Union, Inc., Intervening Plaintiff, v. C. Maxwell BROWN et al., Defendants. and Louisville Board of Realtors, Intervening Defendant.

No. 6838.

United States District Court, W. D. Kentucky, at Louisville.

October 29, 1971.

Martin R. Glenn, John G. O'Mara, Legal Aid Society, Louisville, Ky., for Larry Holt and his wife, Terri Holt and Mrs. Edith Holt.

Jerrold L. Becker, Louisville, Ky., for intervening plaintiff Louisville Tenants Union, Inc.

C. Maxwell Brown, pro se.

Boyce F. Martin, Asst. County Atty., Jefferson County, Ky., for Charles R. First, Jr., Constable First Magisterial Dist., Jefferson County, and Clem H. Block, Justice of the Peace, First Magisterial Dist., Jefferson County.

Shrader R. Miller, Louisville, Ky., for intervening defendant Louisville Bd. of Realtors.

Before BROOKS, Circuit Judge, and GORDON and BRATCHER, District Judges.

MEMORANDUM

BRATCHER, District Judge.

This is an action before a three-judge court, convened pursuant to 28 U.S.C. Section 2284, seeking to invalidate and declare unconstitutional KRS 383.040 and KRS 383.050. Complaint is made that said statutes permit the seizure and sale of property by landlords pursuant to a distress warrant without prior opportunity being afforded tenants to be heard.

The pertinent facts of this case are briefly as follows: The plaintiffs on May 11, 1970, leased certain property located at 1907 Bardstown Road from the defendant, C. Maxwell Brown, and under the terms of the written lease rent was set at $90.00 per month. On September 21 a distress warrant for $180.00 was issued against the plaintiffs allegedly resulting from the plaintiffs' non-payment of two months rent due thereunder. This warrant was served upon plaintiffs at a new address, whereupon plaintiffs negotiated for a settlement of $156.25; however, this settlement was never finalized. On January 6, 1971, the plaintiffs filed an affidavit claiming their statutory exemption under KRS 427.010.

On January 11, 1971, the plaintiffs filed their complaint in the instant case asking for declaratory and injunctive relief against enforcement of the statutes in question. A temporary restraining order was issued prohibiting defendants from selling or otherwise interfering with plaintiffs' possession of the property. Plaintiffs also moved for a class action but this motion was overruled, and we are now asked to reconsider this ruling.

Suit was initiated under 42 U.S.C. Section 1983 to redress the deprivation under color of state law of any right, privilege or immunity secured by the Fourteenth Amendment of the Federal Constitution. Jurisdiction is alleged by virtue of 28 U.S.C. Section 1343 which confers original jurisdiction upon this Court in suits authorized by 42 U.S.C. Section 1983.

JURISDICTION AND ABSTENTION

The defendants have moved to dismiss this action, urging that this Court lacks jurisdiction and alternatively it should abstain from exercising its jurisdiction in this action. Therefore, the initial question before this Court is whether jurisdiction attaches.

Accordingly, it must be first determined whether this is a proper action pursuant to the Civil Rights Act, 42 U. S.C. Section 1983, and if so, it follows that this Court has jurisdiction under 28 U.S.C. Section 1343¹.

The Civil Rights Act provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution or law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The only elements required in order to establish a claim for relief under the Civil Rights Act are that conduct complained of was engaged in by defendants under color of state law, and that such conduct subjected plaintiffs to a deprivation of some right, privilege or immunity secured by the Federal Constitution. See Marshall v. Sawyer, 9th Cir., 301 F.2d 639 (1962).

Concisely stated, the plaintiffs allege that distress sales within the purview of KRS 383.040 and KRS 383.050 are acts "under color of law", which deprive them of the Fourteenth Amendment right to procedural due process, a civil right, by failing to provide for an evidentiary hearing.

Under existing authority concerning similar procedural due process issues as presented here, a distress warrant involves action under color of state law and is a proper civil rights action, thus eliminating plaintiff's obligation to exhaust state remedies. Obviously, this Court has the requisite jurisdiction to determine the controversy pursuant to 42 U.S.C. Section 1983 and 28 U.S.C. Section 1343(3). See Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed. 2d 647 (1967); Escalera v. New York Housing Authority, 2nd Cir., 425 F.2d 853 (1970); Hall v. Garson, 5th Cir., 430 F.2d 430 (1970); Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa., 1970); Laprease v. Raymours Furniture Co., Inc., 315 F.Supp. 716 (N.D.N.Y.1970); and Klim v. Jones, 315 F.Supp. 109 (N. D.Cal., 1970).

It is equally apparent that this case comes under the ambit of 28 U.S.C. Section 2281, and consequently this Three-Judge Court has jurisdiction over the matters at issue. The statutes in question have state-wide application and the injunctive relief sought is enforceable against a state officer. See Hall v. Garson, supra.

Having disposed of the question of jurisdiction we now turn our attention to the question of abstention. Should this Court invoke the doctrine of abstention and remain aloof, thus rendering it necessary that plaintiffs resort to Kentucky Courts to obtain a construction of the statutes in question? We think not. This Court should not stay its hand under the circumstances.

The power of a federal court to refrain from deciding an action brought under the Civil Rights Act is a closely restricted one; in fact, it is widely recognized that cases involving questions of civil rights are the least likely candidates for abstention. See Wright v. McMann, 2nd Cir., 387 F.2d 519 (1967).

Deference to state court adjudication should be resorted to only where the state law is ambiguous and uncertain, not where it appears that no state construction could moot the Federal Constitution issue. See Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511, 27 L.Ed.2d 515 (1971) in which Mr. Justice Douglas writing for the majority held:

"Abstention should not be ordered merely to await an attempt to vindicate the claim in a state court. Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim."

It is obvious that there is no ambiguity or uncertainty attending these statutes.²

Neither statute contains a provision for notice or evidentiary hearing and there are no provisions which could fairly be construed to so provide.

Therefore, in applying established principles set forth in recent precedent, it becomes our manifest duty to decide the constitutional questions presented in the instant case. See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Wisconsin v. Constantineau, supra; Holmes v. New York Housing Authority, 2nd Cir., 398 F.2d 262 (1968); and Edwards v. Sammons, 5th Cir., 437 F.2d 1240 (1971).

CONSTITUTIONALITY

We repeat, plaintiffs urge that the present distress laws permit seizure and sale of property prior to notice and hearing and that such procedural imperfections clash with constitutional guarantees rendering them invalid.

It is elementary that the right to be heard is a fundamental requirement of due process of law and that this right has little value unless a person has the concomitant right to be informed that a matter is pending and the right to choose for himself whether to appear, or default, acquiesce or contest. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In the instant case KRS 383.040 and KRS 383.050 fail to provide for a hearing. The classic situation under these sections involves a summary proceeding permitting a prehearing seizure of personal...