Jacobs v. Huie
| Decision Date | 27 April 1976 |
| Docket Number | Civ. A. No. CA-3-75-0345-G. |
| Citation | 447 F. Supp. 478 |
| Parties | Penny JACOBS, Plaintiff, v. H. K. HUIE, Jr., d/b/a Huie Properties, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Dallas Legal Services Foundation, Inc. by Michael M. Daniel and Carol M. Barger, Dallas, Tex., for plaintiff.
William V. Counts, Lane, Savage, Counts & Winn, Dallas, Tex., for defendant.
John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Joe B. Dibrell by Marianne Wesson Cantrick, Asst. Attys. Gen., Austin, Tex., for intervenor.
Penny Jacobs1 has brought this suit against her former landlord seeking damages and a judicial determination that a statute of the State of Texas is constitutionally infirm. The case turns on the presence or absence of state action, a principle doomed to conceptual adolescence operating as it does, as an adjusting screw between state-federal sovereignties.
In November, 1974, Penny Jacobs executed a form lease for a one-bedroom, unfurnished apartment, at a monthly rental of $175.00 per month — one of over 300 units in an apartment complex. After falling into arrears in rental payments, Ms. Jacobs returned home on February 17, 1975, to learn that in her absence the apartment manager, accompanied by two assistants, had entered her apartment and removed certain pieces of personal property (Plaintiff's Exhibit 2).2
After moving from the apartment, Penny Jacobs instituted this suit, attempting to state a claim under 42 U.S.C. § 1983, and predicating jurisdiction upon 28 U.S.C. § 1343. Penny Jacobs argues that her landlord's entry and summary seizure of her personalty was an execution of a landlord's lien conferred by Art. 5236d V.A.T.S. Art. 5236d is the successor to the baggage lien law held unconstitutional in Hall v. Garson, 430 F.2d 430 (5th Cir. 1970) (Hall I) and 468 F.2d 845 (5th Cir. 1972) (Hall II).3 It provides in pertinent part:
Central to Penny Jacobs' claim is that the seizure of her property was under "color of state law." In the language of United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), the exercise of prerogatives "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is state action taken `under color of state law.'" See Hall v. Garson, 430 F.2d 430.
Although Article 5238a seemed on its face to fit the test of United States v. Classic in that it granted to a citizen the power to summarily seize, the Fifth Circuit, apparently concerned that a literalistic4 reading portended an almost limitless concept of state action, approached the question in more abstract terms; at least it arguably did so.
In this case the alleged wrongful conduct was admittedly perpetuated by a person who was not an officer of the state or an official of any state agency. But the action taken, the entry into another's home and the seizure of another's property, was an act that possesses many, if not all, of the characteristics of an act of the state. The execution of a lien, whether a traditional security interest or a quasi writ of attachment or judgment lien has in Texas traditionally been the function of the sheriff or constable. Thus Art. 5238a vests in the landlord and his agents authority that is normally exercised by the state and historically has been a state function. 430 F.2d 430, 439.
Then, in Hall II, the court accented the role of the statute in the conferring of authority and placed less emphasis upon the nature of the contested conduct. Whether this represented any shift in analytical emphasis or was simply a shorter statement of the holding of Hall I was not clear. Arguably the circuit was requiring a two-step inquiry in testing the presence of state action in seemingly private conduct. First, was there state authorization of the conduct. Second, was the authorized private action one traditionally done by the state.5 A step-one inquiry alone would not provide a standard with any reasonable degree of predictability in result. Significantly, its logic would leave the distinction between private and state action only a dull line with occasional irrational separations, turning virtually on the legality vel non of the conduct. See n. 4, supra.
In 1973, the Texas legislature enacted Art. 5236d to replace Art. 5238a. The following year, a trilogy of cases reviewed the summary seizure tolerated by UCC Art. 9 § 503 in Mississippi, Alabama and Texas. James v. Pinnix, 495 F.2d 206 (5th Cir. 1974); Brantley v. Union Bank & Trust Co., 498 F.2d 365 (5th Cir. 1974); Calderon v. United Furniture Co., 505 F.2d 950 (5th Cir. 1974). UCC Art. 9 § 503 provides in relevant part:
In James, Hall v. Garson was distinguished as involving: (i) "... a function traditionally performed by the sheriff or other state agent ...", James v. Pinnix, supra, at 208; (ii) entry into a home; and (iii) a general lien and not a security interest in specific goods. Finally, James rejected the arguments that state regulation so pervaded the field as to constitute state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) and Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1966) were found inapposite because they involved virtually malum in se conduct — racial discrimination. Calderon held that despite the fact that the self-help involved entry into a home (and presumably carrying with it the same heavy indicium of a state function found in Hall) because there was a specific security interest involved, there was no state action.
The court did not articulate why the existence of a specific security interest should be determinative. While a creditor's ownership of property interests in specific property is pertinent in weighing the adequacy of the procedures preceding a seizure (see Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974)), its relevance to state involvement in the seizure is not clear. The Ninth Circuit has recently suggested, also without citation, that execution of a specific, as distinguished from a general, lien was "traditionally" left to private hands. Culbertson v. Leland, 528 F.2d 426 (9th Cir. 1975). But it is far from certain that Culbertson holds more than that execution of a lien upon unspecified property, unlike repossession, ought to be exercised by state officials. This appears to be a shift from using the result of the inquiry as to whether the conduct was traditionally exercised by the state as evidence of whether state action was involved. Obviously, what ought to be (in the judgment of the court) and what was may be different.
It is upon the efforts of the Fifth Circuit in James to distinguish Hall that Penny Jacobs bottoms her attack. She points out that the lien in issue is not specific and the seizure was from her home. But Calderon does not in its implication of a public function dictate that all executions of a general lien involve state action. Delegation of a public function to a private citizen or tolerance of private performance of a public function is indicative but not determinative of the existence of state action.6 In all cases where an application of the public function test resulted in state action, the state was at least neutral in its manifested policy toward the contested conduct. Under Art. 5236d, the state is not neutral toward the summary seizure of a tenant's property. Such self-help is forbidden unless ". . . pursuant to the terms of a written rental agreement . . ."
Ironically, the statute attacked here by the...
To continue reading
Request your trial