Landrigan v. McElroy, 80-213-A

• Decision Date: 16 March 1983
• Docket Number: No. 80-213-A,80-213-A
• Citation: 457 A.2d 1056
• Parties: Bruce B. LANDRIGAN v. William J. McELROY. ppeal.
• Court: Rhode Island Supreme Court

Page 1056

457 A.2d 1056

Bruce B. LANDRIGAN v. William J. McELROY.

No. 80-213-Appeal.

Supreme Court of Rhode Island.

March 16, 1983.

William Y. Chaika, Cranston, for plaintiff.

William J. Toohey, City Sol., Warwick, for defendant.

OPINION

WEISBERGER, Justice.

The defendant appeals from a Superior Court order granting the plaintiff's motion for a body execution pursuant to G.L.1956 (1969 Reenactment) § 9-25-15. The defendant contends that the body execution statute contravenes the Fourteenth Amendment to the Constitution of the United States. We agree that a portion of the statute is unconstitutional. Accordingly, we sustain the defendant's appeal, vacate the order that granted the plaintiff's motion for a body execution, and remand the case to the Superior Court.

The facts that led to the issuance of the body execution in this case are undisputed. A civil action for assault and battery in the Superior Court resulted in a jury verdict for plaintiff. Judgment was entered in the amount of $42,029.28 plus interest on December 3, 1976. The trial justice denied defendant's motion for a new trial, and defendant appealed to this court. On February 22, 1979, we summarily denied and dismissed defendant's appeal. Landrigan v. McElroy, 121 R.I. 949, 398 A.2d 1144 (1979). The plaintiff then requested that the clerk of the Superior Court prepare an execution on the judgment. During March and April of 1979 two executions were issued, but both were returned unsatisfied.

Thereupon, plaintiff moved pursuant to § 9-25-15 for an execution against the body of defendant. ¹ Arguing that the body execution statute was unconstitutional, defendant objected. After a hearing, a Superior Court justice granted plaintiff's motion and on April 29, 1980, ordered that an execution issue against the body of defendant. On the same day, a stay pending appeal to this court was granted.

The arguments of defendant on appeal can be summarized as follows: (1) section 9-25-15 denies defendant the equal protection of the laws by depriving him of his fundamental right to physical liberty without a compelling state interest, (2) the issuance of a body execution without a prior hearing concerning defendant's ability to pay the tort judgment does not comport with the requirements of procedural due process, and (3) the body execution statute impermissibly creates an irrebuttable presumption. We shall not address the third argument because our determination of defendant's procedural due-process and equal-protection claim is dispositive. Before we address the merits of these claims, however, we must discuss the background of the body execution statute.

History of the Body Execution Statute

Imprisonment for debt is an ancient remedy. Note, Body Attachment and Body Execution: Forgotten But Not Gone, 17 Wm. & Mary L.Rev. 543, 543 (1976); see Howe, Studies in the Civil Law 205-06 (2d ed. 1905). Indeed, under Roman law creditors could seize and imprison even insolvent debtors and sell them into slavery; if more than one creditor had a claim against a debtor, they could partition the debtor's body into proportionate shares. See Note, supra, at 543-44 (citing the law of the Twelve Tables (451-450 B.C.)); see also MacKenzie, Roman Law 6 (3d ed. 1870). At common law, the writs of capias ad respondendum and capias ad satisfaciendum authorized the arrest of the debtor at the initiation of the lawsuit or after judgment had been rendered respectively. Vestiges of these procedures existed in colonial America and in the United States during the post-Revolutionary War period. ² In response to abusive utilization of body execution statutes by creditors during the late-eighteenth and nineteenth centuries, state legislatures enacted statutory and constitutional provisions that limited or entirely prohibited imprisonment for debt. See generally, Note, Imprisonment for Debt: In the Military Tradition, 80 Yale L.J. 1679, 1679 n. 1 (1971) (listing statutory and constitutional provisions concerning body execution). The Constitution of the State prohibits, absent a strong presumption of fraud, continued imprisonment of a judgment debtor "after he shall have delivered up his property for the benefit of his creditors * * *." R.I. Const., art. I, sec. 11. Moreover, once a contract judgment debtor is imprisoned pursuant to a body execution, he or she may obtain release almost immediately by taking the "poor debtor's oath." See G.L.1956 (1969 Reenactment) §§ 10-13-1 to -29. ³ In addition, the creditor for whose benefit the debtor is imprisoned must pay in advance for the prisoner's board. Section 10-10-12. ⁴

Section 9-25-15 must be examined in light of these limitations and its own legislative history. The body execution statute originated in the Court and Practice Act of 1905. See C.P.A.1905, § 613. The predecessor statutes to § 9-25-15 contained virtually the same language. Compare G.L.1956 (1969 Reenactment) § 9-25-15 with G.L.1938, ch. 552, § 11 and G.L.1909, ch. 303, § 11. In 1961 the Legislature amended the statute to enable judgment creditors to obtain through ex parte motion execution against the bodies of judgment debtors. Public Laws 1961, ch. 167, § 2 (amending G.L.1956, § 9-25-15). Clearly, this amendment was intended "to deprive judgment creditors of arbitrary power to issue, through their counsel, body executions against judgment debtors and to require submission of the petitions to judicial scrutiny." Martin v. Estrella, 110 R.I. 368, 370, 292 A.2d 884, 886 (1972). We have held, however, that once a judgment creditor sets forth one of the statutory grounds for issuance of a body execution, the trial justice has no choice but to grant the creditor's motion. Id. As will become evident, our decision today overrules Martin v. Estrella to the extent that the court's opinion in that case deprives a trial justice of any discretion to deny a motion for a body execution. ⁵

The Constitutional Validity of § 9-25-15

The defendant bases his equal-protection challenge to § 9-25-15 on the doctrine enunciated by the United States Supreme Court in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). In both cases the Court addressed the constitutionality of imprisoning a defendant beyond the statutorily authorized term solely because the defendant was unable to pay a fine that accompanied his sentence. The Court determined that such imprisonment constituted invidious discrimination in violation of the equal-protection clause. Tate, 401 U.S. at 398, 91 S.Ct. at 670-71, 28 L.Ed.2d at 133; Williams, 399 U.S. at 242, 90 S.Ct. at 2023, 26 L.Ed.2d at 593. These cases make clear that the state cannot imprison an individual solely because of a lack of money.

The defendant points out that a federal district court relied on Williams and Tate to strike down, as facially repugnant to the equal-protection clause, the body execution statute of another state. In Abbit v. Bernier, 387 F.Supp. 57 (D.Conn.1974), the court found that even though the Connecticut statute did not expressly exclude a preincarceration hearing to determine ability to pay, the state courts implemented the statute without providing for such hearings. Id. at 61-62; see Conn.Gen.Stat.Ann. § 52-369 (West 1960). Consequently, the court struck down the statute as unconstitutional. 387 F.Supp. at 62. Subsequently, a Connecticut state court found that the Abbit court erroneously concluded that court practices in the state did not include a hearing to determine the judgment debtor's ability to pay. Palumbo v. Manson, 35 Conn.Supp. 130, 133, 400 A.2d 288, 289-90 (Super.Ct.1979). Accordingly, the state court upheld the body execution statute by interpreting it as requiring such a hearing. Id. at 134, 400 A.2d at 290. ⁶

The body execution statute at issue in Abbit and Palumbo was silent concerning a preincarceration hearing to determine the judgment debtor's ability to pay. See Abbit, 387 F.Supp. at 62; Palumbo, 35 Conn.Supp. at 132, 400 A.2d at 290. The "ex parte" amendment to our statute, on the other hand, implicitly excludes such a hearing. Moreover, this court's interpretation of that amendment in Martin v. Estrella, supra, deprives a trial justice of any discretion to deny issuance of a body execution once a creditor sets forth the existence of a statutory ground. We are of the opinion, therefore, that § 9-25-15 is incapable of an interpretation upholding its validity as long as the "ex parte" language is an effective part of the statute.

The body execution statute does not expressly create two classifications of tort judgment debtors, namely, those debtors who are able to pay but refuse to do so and those who are unable to pay. As the Court stated in Williams, however, "a law nondiscriminatory on its face may be grossly discriminatory in its operation." 399 U.S. at 242, 90 S.Ct. at 2023, 26 L.Ed.2d at 593 (quoting Griffin v. Illinois, 351 U.S. 12, 17 n. 11, 76 S.Ct. 585, 590 n. 11, 100 L.Ed. 891, 898 n. 11 (1956)). By failing to provide for a preincarceration hearing to determine ability to pay, the statute in effect enables only tort judgment debtors who are able to pay to obtain immediate release from imprisonment. These individuals need only comply with the judgments and executions against them. On the other hand, tort judgment debtors who are unable to pay must remain in prison for at least six months. See § 10-13-27. ⁷ They are, therefore, incarcerated solely because of their lack of money. This disparate treatment is precisely the type of invidious discrimination prohibited by the Court in Williams and Tate. See Tate v. Short, 401 U.S. at 398, 91 S.Ct. at 670-71, 28 L.Ed.2d at 133; Williams v. Illinois, 399 U.S. at 242, 90 S.Ct. at 2023, 26 L.Ed.2d at 593. See generally Note, Vermont's Close Jail Execution: Physical Incarceration of the Wilful and Malicious Tortfeasor, 3 Vt.L.Rev. 165, 184-89 (1978) (discussing...