Lindsey v. Greene
| Decision Date | 18 May 1981 |
| Docket Number | No. 79-3477,79-3477 |
| Citation | 649 F.2d 425 |
| Parties | Linnie LINDSEY, Barbara Hodgens and Pamela Ray, Plaintiffs-Appellants, v. Joseph GREENE and Unknown Deputy Sheriffs, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Betsey B. Swan, Legal Aid Soc. of Louisville, Robert Frederick Smith, Louisville, Ky., for plaintiffs-appellants.
William L. Hoge, III, Asst. Jefferson County Atty., John Swain, Harry E. Sykes, Louisville, Ky., for defendants-appellees.
Before KEITH and MERRITT, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
This case presents the single issue of the constitutionality of a Kentucky statute that allows constructive service of process by posting in forcible entry and detainer actions. The statute, Ky.Rev.Stat. § 454.030, states:
If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court.
Plaintiffs-appellants, tenants in a Louisville housing project, claim that service by posting allows judgment without notice in violation of the Due Process Clause. The District Court granted summary judgment against them. We reverse and, in light of intervening Supreme Court cases changing the law, hereby overrule Weber v. Grand Lodge of Kentucky, 169 F. 522 (6th Cir.), cert. denied, 215 U.S. 606, 30 S.Ct. 406, 54 L.Ed. 346 (1909).
In 1975 the Louisville Housing Authority filed detainer actions against appellants in state court in order to repossess their apartments. Process was served by posting copies of the summonses on the doors of their apartments. They allege that they never saw the summonses and did not learn of them until they were served with writs of possession, executed after default judgments had been entered against them and the time for appeal had expired.
Having no recourse in state court, appellants filed the present action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U.S.C. § 1983 for violation of the right to notice guaranteed by the Due Process Clause. Uncontradicted testimony taken in depositions indicated that some fifty percent of summonses were served via posting and that not infrequently the posted summonses were removed by people other than those served, thus affording tenants no notice of the proceedings against them. The District Court recognized the problem but nonetheless dismissed the complaint, relying on the authority of Weber.
In Weber the Sixth Circuit rejected a similar constitutional challenge to the predecessor of § 454.030, which was in all relevant respects identical to the rule challenged now. Plaintiffs in Weber served process on out-of-state defendants who had leased realty in Kentucky by posting a copy of the summons on the realty. The Court noted that the constitutionality of such constructive notice was "well settled by repeated decisions of the Supreme Court." 169 F. at 527.
Federal courts have long held that procedural due process requirements come into play when governmental power is used to deprive a person of an interest, derived from the common law, in the peaceful possession and use of real property. Notice of suit and an opportunity to be heard is an essential element of a judicial proceeding, distinguishing it from the exercise of arbitrary power. 1
Crucial to our Court's decision in Weber was the traditional distinction between proceedings in rem and proceedings in personam observed by the Supreme Court throughout the nineteenth century. 2 Different standards governed the kind of process appropriate in the two kinds of proceedings. The doctrinal framework for measuring those standards set up by the Court in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), stood for nearly seventy years. In Pennoyer, the Court concluded that in personam jurisdiction may not ordinarily be obtained without personal service, but that in rem jurisdiction may rest upon the fiction that seizure of property does provide notice to its owner. The Court constitutionalized the principle that the states were powerless to extend their jurisdictional authority in in personam proceedings to those beyond their boundaries as it reaffirmed the power of the states to adjudicate all rights to property within their boundaries, regardless of the presence of its owners.
The Weber Court concluded that the proceeding before it was "in the nature of a proceeding in rem." 169 F. at 527. It recognized that the jurisdictional rule established in Pennoyer required it to choose between allowing constructive service by posting or denying the state the power to settle the claims of non-residents to property within the state. Id. at 526. It rested its conclusion that service by posting satisfied due process requirements upon four Supreme Court cases, all decided in the shadow of Pennoyer: Huling v. Kaw Valley Railroad, 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1035 (1889); Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918 (1890); Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461 (1907); and Longyear v. Toolan, 209 U.S. 414, 28 S.Ct. 506, 52 L.Ed. 859 (1908). In each case the Court had upheld the constitutionality of statutes that provided for service by posting in in rem proceedings. It had held in each case that due process required no effort to give defendants in in rem proceedings personal notice.
Subsequent decisions by the Supreme Court have removed the doctrinal framework underlying the Sixth Circuit's decision in Weber. With International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); and Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the Court effectively erased the former distinction between in rem and in personam jurisdiction. On the one hand the cases extended state jurisdiction to persons not within the territorial boundaries, so long as sufficient "minimum contacts" existed between the person and the state; on the other they established stricter due process notice requirements, limiting the use of such formerly permissible methods as publication. The Court has recognized that the belief that "an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property" is an outmoded fiction. Shaffer v. Heitner, 433 U.S. at 212, 97 S.Ct. at 2584. It accordingly has held that the Fourteenth Amendment right to fair notice "cannot depend on the classification of an action as in rem or in personam." Id. at 206, 97 S.Ct. at 2580. Accord, Mullane v. Central Hanover Bank & Trust Co., supra.
The standard now applicable to the present case as well as to traditional in personam proceedings is that set out in Mullane: the "fundamental requirement of due process is notice reasonably calculated, under all...
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