Osmond v. Spence

• Decision Date: 13 May 1971
• Docket Number: Civ. A. No. 3940.
• Citation: 327 F. Supp. 1349
• Parties: Louis H. OSMOND et al., Plaintiffs, v. Ernest S. SPENCE et al., Defendants.
• Court: U.S. District Court — District of Delaware

327 F. Supp. 1349

Louis H. OSMOND et al., Plaintiffs, v. Ernest S. SPENCE^* et al., Defendants.

Civ. A. No. 3940.

United States District Court, D. Delaware.

May 13, 1971.

Elwyn Evans, Jr., and John S. Stoppelman of the Community Legal Aid Society, Inc., Wilmington, Del., for plaintiffs, Louis H. and Marie L. Osmond, Stanley M. Burton, William L. and Jesse Mae Barbour, Stella M. (Dawkins) Townsend, Clarence W. and Shelly J. DuBois, Henry C. and Marie D. Dehoyos and Karl B. Ebert.

David Roeberg, of Sullivan, Potter & Roeberg, Wilmington Del., for plaintiffs, John and Joan Walsh, and Joel Katz.

John M. Bader, of Bader, Dorsey & Kreshtool, Wilmington, Del., for plaintiff Robert F. Gregg.

William J. Wier, Jr., and Bertram S. Halberstadt, Wilmington, Del., for the American Civil Liberties Union, appearing in behalf of the plaintiffs as amicus curiae.

Joseph J. Longobardi, of Longobardi & Schwartz, Wilmington, Del., for defendant Ernest S. Spence.

Robert E. Daley, Asst. New Castle County Atty., Wilmington, Del., for defendants, Paul E. Neill and Eleanor Riley.

Martin I. Lubaroff, of Richards, Layton & Finger, Wilmington, Del., and Eduard F. von Wettberg, III, of Morris, James, Hitchens & Williams, Wilmington, Del., for Delaware Bankers Ass'n.

Alfred J. Lindh, of Taylor, Lindh, Paul & Biden, Wilmington, Del., for Lease Service Associates for Delaware, Inc.

Samuel Handloff, Wilmington, Del., for Signal Finance Corp. of Newark.

Frederick Knecht, Jr., Wilmington, Del., for Associates Discount Corp., Colonial of Delaware, and Cooper's Home Furnishing.

Before VAN DUSEN, Circuit Judge, and WRIGHT and LAYTON, District Judges.

OPINION

LAYTON, District Judge.

This is a purported class action by six¹ plaintiffs to have declared unconstitutional certain statutes and Delaware Superior Court rules which permit the entry of judgments by confession upon warrant of attorney. Plaintiffs have also prayed for preliminary and permanent injunctions restraining the Prothonotary and Sheriff from recording or executing upon such judgments.

Pursuant to T. 28 U.S.C. Sec. 2281, a three-judge court was named to hear and decide the case.

Delaware Bankers Association "DBA", an unincorporated association, was permitted to intervene in opposition to plaintiffs' motion for a preliminary injunction. Although certain creditors have upon application intervened as parties defendant, for all practical purposes DBA has taken over the defense of this action.

A Temporary Restraining Order was entered by a single judge of this Court on November 4, 1970,² restraining the nominal defendants, their deputies and all others acting in concert with them from:

(1) Executing upon or selling any real or personal property, including wages, of the named individual plaintiffs upon confessed judgments docketed pursuant to 10 Del.C. Sec. 2306 and Del. Super.Ct. (Civil) R. 58(b);

(2) Serving writs of attachment fi fa issued by the Prothonotary on confessed judgments docketed pursuant to the above-cited Delaware statute and rule of court on employers of confessed judgment debtors to attach wages;

(3) Delivering money now being collected by various employers of the class of confessed judgment debtors who have confessed judgment of the type described above docketed against them, to the judgment creditors who have issued wage attachments;

(4) The order was issued without prejudice to the Prothonotary and Sheriff to serve wage attachments against a confessed judgment debtor in cases where it could be demonstrated that debtor had understandingly waived his right to notice and an opportunity to be heard prior to (or subsequent) judgment.³

Following a hearing on the merits by the full Court on December 23, 1970, the Temporary Restraining Order was continued until final hearing on March 1, 1971, or until final disposition.

Because this suit seeks to nullify 10 Del.C. Sec. 2306 and Superior Court Rule 58(b), Del.C.Ann. giving rise to a longstanding practice in Delaware of entering judgment upon notes with warrant of attorney attached, we think it might better have been instituted in the State Courts. However, we find no authority under the doctrine of abstention⁴ justifying a referral of this case to the State Courts for decision in view of the circumstances presented by this record. Cf. Askew v. Hargrave, March 8, 1971, 401 U.S. 476, 91 S.Ct. 556, 28 L.Ed.2d 196; McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963).

JURISDICTION

Although our jurisdiction in this action is not drawn into question by either side, we, nevertheless, have considered the point. There being neither diversity nor the necessary jurisdictional amount under T. 28 U.S.C. Sec. 1331, jurisdiction must, if at all, be found on the Civil Rights Act, and, more particularly, 28 U. S.C. Sec. 1343(3).⁵ While there has never been a definitive interpretation as to the scope of this section by the Supreme Court, this question was before that Court in Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). However, the views of the Justices were so diverse that there was no majority opinion on this point. Justice Stone's concurring opinion, in which only two other Justices joined, has been frequently cited as authority for the proposition that Sec. 1343(3) affords jurisdiction in cases involving personal, but not property, rights.⁶

"The conclusion seems inescapable that whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights, there is jurisdiction in the district court." (Emphasis supplied.) See P. 530, 59 S.Ct. at p. 971.

While the language of the statute furnishes no basis for the distinction above drawn, nevertheless, sound judicial thinking has approved it⁷ as the only practical method of harmonizing the section with the general federal question jurisdictional statute, 28 U.S.C. Sec. 1331, which has always had a jurisdictional amount. See Eisen v. Eastman, 421 F.2d 560, 563-566 (2d Cir. 1969). In that case, Judge Friendly, speaking for the Second Circuit, after a careful review of the cases, held that Sec. 1343(3) afforded no jurisdiction upon which a landlord could base an action involving property rights only against the city district rent and rehabilitation director challenging the constitutionality of the city rent control law and actions taken under that law.⁸ In line with this view, see, e. g., National Land & Investment Co. v. Specter, 428 F.2d 91 (3d Cir. 1970); Bradford Audio Corp. v. Pious, 392 F.2d 67 (2d Cir. 1968) (seizure of bank deposit); Bussie v. Long, 383 F.2d 766, 769 (5th Cir. 1967) (class action against Louisiana Tax Commission alleging non-feasance of members); Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967) (deprivation of $500.00 while in sheriff's custody); Gray v. Morgan, 371 F.2d 172, 174-175 (7th Cir. 1966) (attack on Wisconsin income tax); Ream v. Handley, 359 F.2d 728 (7th Cir. 1966) (slander of title to real estate by state officials).

And, conversely, a line of cases exists upholding federal court jurisdiction under Section 1343(3) where the right asserted was purely personal. See, e. g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (equal right to vote); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (freedom of speech and of petition for redress of grievances); and Crossen v. Fatsi, 309 F.Supp. 114 (D.Conn.1970) (school rules involving dress and grooming invade right of privacy). Some decisions involve license revocations which impair the personal right to pursue an occupation. See, e. g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Gold v. Lomenzo, 425 F.2d 959 (2d Cir. 1970) (real estate broker's license); Mansell v. Saunders, 372 F.2d 573 (5th Cir. 1967) (garbage franchise); Burt v. City of New York, 156 F.2d 791 (2d Cir. 1945) (architectural permit); Glicker v. Michigan Liquor Control Comm'n, 160 F.2d 96 (6th Cir. 1947) (liquor license); see also Taylor v. New York Transit Authority, 309 F.Supp. 785 (E.D.N.Y. 1970) (dismissal from employment with transit authority). Others involve contractual rights. See, e. g., McGuire v. Sadler, 337 F.2d 902 (5th Cir. 1964) (suit against Land Commissioner of Texas for illegally changing boundaries); Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953) (teacher's suit against city for refusal to pay agreed-upon new salary).

But as pointed out in Eisen, in between these extremes lie dozens of factual situations which can be viewed "about equally well as complaining of a deprivation of the personal liberty to pursue a calling of one's choice as emoluments deriving therefrom." 421 F.2d at 565. And among these, the following are somewhat analogous to the case at bar. See, Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir. 1970) (jurisdiction was assumed in this suit to prevent eviction without a hearing without reference to the distinction); Escalera v. New York City Housing Authority, 425 F.2d 853, 864 (2d Cir. 1970) (eviction of a poor person without a hearing violates due process); Laprease v. Raymours Furniture Co., Inc., 315 F. Supp. 716 (N.D.N.Y.1970) (New York statute permitting sheriff to seize defaulting conditional purchaser's household articles without a court order violates due process); Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa.1970) (Pennsylvania distraint statute applied to poor persons); McClellan v. Shapiro, 315 F. Supp. 484 (D.Conn.1970) (jurisdiction accepted in complaint by welfare recipients alleging that they were denied equal protection of the laws by amendment to state welfare statute); Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970); Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa. 1970) (Pennsylvania judgment by confession procedure); Roberge v. Philbrook, 313 F.Supp. 608, 613 (D.Vt.1970) (loss of public assistance amounts, in the case of a poor person,...