Roscoe v. Butler
| Decision Date | 03 December 1973 |
| Docket Number | Civ A. No. 72-791-N and 72-1268-N. |
| Citation | 367 F. Supp. 574 |
| Parties | James Clarence ROSCOE, Individually and on behalf of all others similarly situated, v. J. Jerome BUTLER, Chief Constable, L. Zimmerman, Deputy Constable, District Court of Maryland, Individually and on behalf of all others similarly situated. Julene WRIGHT, Individually and on behalf of all others similarly situated, v. J. Jerome BUTLER, Chief Constable, District Court of Maryland, Individually and on behalf of all others similarly situated. |
| Court | U.S. District Court — District of Maryland |
Marilyn Fisher and Alan S. Davis, Law Reform Unit, Legal Aid Bureau, Inc., Baltimore, Md., for plaintiffs.
Francis B. Burch, Atty. Gen., of Maryland and Thomas G. Young, Asst. Atty. Gen., of Maryland, Baltimore, Md., for defendants.
Before WINTER, Circuit Judge, NORTHROP, Chief District Judge, and MURRAY, District Judge.
The plaintiffs instituted these suits as class actions, each challenging the constitutionality of attachment upon original process after two summonses have been returned non est, as authorized by the Annotated Code of Maryland, Article 9, Section 1(b) (Cum.Supp.1972) and Maryland District Court Rules G40 et seq., on the grounds that this procedure violates the due process clause of the fourteenth amendment. The plaintiffs request this Court to enter declaratory judgments and to permanently enjoin the defendants from executing any writs of attachment issued pursuant to the statute and rules in question.1
Since relief is sought pursuant to 42 U.S.C. § 1983 (1970), the jurisdiction of this Court is invoked under 28 U.S.C. § 1343(3) (1970). A three-judge court was designated and convened pursuant to 28 U.S.C. §§ 2281 and 2284 (1970).2
Initially, we find that this Court has jurisdiction under 28 U.S.C. § 2281 to review the constitutionality of the Maryland District Rules. Section 2281 provides in relevant part:
An interlocutory or permanent injunction restraining the enforcement . . . of any State statute by restraining the action of any officer of such State in the enforcement . . . of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court . . . upon the ground of unconstitutionality . . . unless the application . . . is . . . determined by a district court of three judges . . . .
The Supreme Court has construed the term "State statute" to mean a statute or regulation, created or authorized by a state legislature that has statewide application or effectuates a statewide policy. Board of Regents v. New Left Education Project, 404 U.S. 541, 542, 92 S. Ct. 652, 30 L.Ed.2d 697 (1972). Furthermore, a "statute" does not encompass local ordinances or regulations, Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967), or a state statute having only local impact, Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242 (1939).
In the instant case, the Court of Appeals of Maryland is authorized by Md.Ann.Code Art. 26 § 25 (1973) "to prescribe by general rules, the practice and procedure in all civil actions both at law and in equity in all courts of record throughout the State." The rules thus prescribed have the force of law within the state. Md.Const. art. IV, § 18A; Hill v. State, 218 Md. 120, 127, 145 A.2d 445, 449 (1958). The Maryland District Court has been designated a court of record by Art. IV § 1 of the Maryland Constitution and has been invested with uniform jurisdiction throughout the state by § 41A. Therefore, since the Court of Appeals promulgated the Maryland District Rules in 1971 "for the governance of the District Court of Maryland . . . in all actions and proceedings therein," Md.Dist.Ct.R. G40 et seq. constitute "state statutes" within the meaning of 28 U.S.C. § 2281.3
This action is a consolidation of two cases. The factual setting of each is set forth below.
(a) Roscoe v. Butler—Prior to the middle of October 1971, plaintiff, James C. Roscoe, became indebted to the Korvettes Division of Arlen Realty and Development Corporation in the amount of $1,268.43. On October 27, 1971, Korvettes filed suit in the District Court of Maryland against plaintiff and summoned him to appear for trial on December 9, 1971. On November 19, 1971, however, Deputy Constable O'Rourke made a return of non est as to the plaintiff, stating that he had moved. A second summons was sent by certified mail to Mr. Roscoe, but was returned on January 3, 1972, with the post office notation that there had been no answer at the address.
Consequently, on or about June 6, 1972, Arlen Realty, through its agent, Central Credit Control, Inc., filed a petition for a writ of attachment after two non ests against Mr. Roscoe's property pursuant to Md.Ann. Code Art. 9 § 1(b) (Cum.Supp.1972) and Md.Dist.Ct.R. G40 et seq. In addition, Arlen Realty and Central Credit filed District Court Form 170 requesting attachment of Mr. Roscoe's 1967 automobile. On July 3, 1972, a writ of attachment was issued, and Deputy Constable L. Zimmerman, under the supervision of defendant, J. Jerome Butler, went to plaintiff's home, seized the automobile, and delivered it to a garage for storage. This attachment was made without prior notice, opportunity to be heard, or judgment being entered in favor of Arlen Realty or Central Credit against plaintiff, James C. Roscoe.4
(b) Wright v. Butler—On March 17, 1972, Oakley Sales, through its agent, Capitol Credit Agency, Inc., filed suit in the District Court of Maryland against the plaintiff, Julene Wright, alleging that Mrs. Wright was indebted to Oakley Sales in the sum of $429.03. A summons issued to Mrs. Wright was returned non est on June 22, 1972 and November 9, 1972. On November 14, 1972, Capitol Credit filed a petition for a writ of attachment after two non ests pursuant to Md.Ann.Code Art. 9 § 1(b) (Cum.Supp.1972) and Md.Dist.Ct.R. G40 et seq. against the property of Mrs. Wright. In addition, Capitol Credit filed District Court Form 170 requesting seizure of all of Mrs. Wright's household goods and possessions. A writ of attachment was issued on November 29, 1972, and five days later two constables, under the supervision of defendant, J. Jerome Butler, went to the home of Mrs. Wright where she turned over to the constables a passbook to a savings account and signed an authorization for the withdrawal of money from the account. The next day the constables withdrew from the account $461.03, which represented the amount claimed plus charges and costs. This attachment was made without prior notice, opportunity to be heard, or judgment being entered in favor of Capitol Credit or Oakley Sales against Mrs. Wright.5
Judicial proceedings by way of attachment is an area of the law whose roots have been traced as far back in time as the year 1483 in London where the "custom of foreign attachment" was regularly practiced. W. Hodge & R. McLane, The Law of Attachment in Maryland, § 1 (1895). The concept of attachment was incorporated into the laws of Maryland by the Act of 1715, Chap. 4, apparently for the purpose of compelling the appearance of a non-resident defendant or absconding debtor.6 The Act facilitated this function by introducing the concept of a return of summons twice non est. When such a return was made, the statute treated the defendant, for all practical purposes, as an absconding debtor. The case law in Maryland has uniformly supported this view. Randle v. Mellen, 67 Md. 181, 189, 8 A. 573 (1887); Dirickson v. Showell, 79 Md. 49, 51-52, 28 A. 896 (1894).
The present Maryland Law authorizing attachments on original process is Article 9, Section 1 of the Maryland Annotated Code:
The plaintiff challenges only the constitutionality of this subsection and the implementing Rules of the Maryland District Court, G40 et seq.7 These rules provide that an attachment under subsection (b) can issue only upon an action ex contractu for liquidated damages. Md.Dist.Ct.R. G41 b. Furthermore, in order to commence an attachment after two non ests, the plaintiff-creditor must file with the Clerk: (1) a statement of his claim; (2) his own affidavit or an affidavit on his behalf setting forth that he knows, or he is credibly informed and verily believes that he is entitled to the issuance of attachment based upon the return of two non ests; (3) either the original, or sworn, certified or photostatic copies of all material papers or parts thereof which constitute the basis of the claim, unless the absence thereof is explained in the affidavit, and (4) instructions to the Sheriff as to the description and location of the property of the defendant to be attached. Md.Dist.Ct.R. G42. When the plaintiff has taken these steps, the Clerk must issue the writ of attachment against the property of the defendant and assign the case for trial. Md.Dist. Ct.R. G44. The plaintiff-creditor, however, need not post a bond in the sum alleged to be due from the defendant unless the attachment is grounded, inter alia, on Article 9 § 1(c) in an action ex delicto.
The attachment is not automatically dissolved by the appearance of the defendant. Rather, the defendant-debtor may dissolve the attachment by posting bond in an amount equal to the value of the property as determined by the Court, or double the amount of the plaintiff-creditor's claim, whichever is less. Md.Dist.Ct.R. G57.
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