Stanford v. Gas Service Company

• Citation: 346 F. Supp. 717
• Decision Date: 13 July 1972
• Docket Number: Civ. A. No. W-4783.
• Court: U.S. District Court — District of Kansas
• Parties: Willie STANFORD et al., Plaintiffs, v. The GAS SERVICE COMPANY, State Corporation Commission of the State of Kansas, Defendants.

346 F. Supp. 717

Willie STANFORD et al., Plaintiffs, v. The GAS SERVICE COMPANY, State Corporation Commission of the State of Kansas, Defendants.

Civ. A. No. W-4783.

United States District Court, D. Kansas.

July 13, 1972.

Michael D. Gragert, Legal Aid Society of Wichita, Lee Woodard, Wichita, Kan., for plaintiffs.

John E. Rees, Wichita, Kan., for defendants.

ORDER

THEIS, District Judge.

The defendant Gas Service Company (hereinafter referred to as "Company") and defendant State Corporation Commission of the State of Kansas (hereinafter referred to as the "KCC"), have each filed motions to dismiss pursuant to Rule 12, Federal Rules of Civil Procedure, 28 U.S.C.A., alleging that plaintiffs have failed to state a claim upon which relief can be granted and, alternatively, that this Court lacks jurisdiction. After hearing extensive oral argument and being fully advised in the matter, the Court makes the following findings and orders.

Plaintiffs commenced this action as a class action proceeding against the defendants alleging that the termination procedures of natural gas service presently employed by them violated procedural due process requirements. Plaintiffs assert this Court has jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) (4), 2201 et seq. The gist of plaintiffs' argument for relief is that a utility company's power to shut off water, lights or fuel is an inordinate amount of power under state law not available to other persons or corporations, and when exercised arbitrarily upon the decision of the Company alone, it amounts to depriving a citizen of a property right without due process of law, and is subject to federal constitutional restraint under the federal Civil Rights Act. Plaintiffs allege that a pretermination procedure should be established to allow the Company's customers an opportunity to contest utility charges made against them for gas services rendered. No issue of standing is presented since all named plaintiffs contest the validity of respective sums presently owed to the Company. The named plaintiffs have posted bond as security for charges incurred since January 18, 1972, pending final resolution of this matter.

Both defendants contend that plaintiffs are actually attempting to obtain free gas service and that this Court lacks jurisdiction. Defendant KCC contends that it is not a "person" as contemplated by 42 U.S.C. § 1983, and therefore no jurisdiction exists as to it. Further, the KCC contends that plaintiffs have failed to exhaust available administrative remedies. It argues that an adequate procedural remedy is presently available to dissatisfied customers of the Company by presenting either a formal or an informal complaint to the KCC stating the grievance. K.S.A. §§ 66-110, 111. The Company contends that 28 U.S.C. § 1342 precludes this Court from granting injunctive relief to the plaintiffs. Both defendants contend the Company is not acting by or under color of state law and that no deprivation of a constitutionally protected right is alleged by plaintiffs.

There are two essential elements to a cause of action under 42 U.S.C. § 1983. In Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1969), the United States Supreme Court stated:

"The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the `Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right `under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.' This second element requires that the plaintiff show that the defendant acted `under color of law.'"

See also Rowe v. Chandler, 332 F.Supp. 336, 339 (D.Kan.1971).

The relief plaintiffs seek in the present action is for this Court to require the defendants to establish procedural due process requirements and safeguards in the form of pretermination proceedings. The procedural safeguards needed and required by the Courts to insure due process of law have not always been explicitly enumerated in the United States Constitution. Neither have all the "rights" or "entitlements" requiring due process protections been specifically stated. McGautha v. California, 402 U.S. 183, 255, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1970) (Brennan, J. dissenting). The doctrine of entitlements has been developed by the United States Supreme Court to protect interests variously denominated as "statutory entitlements" or "important interests." Fuentes et al. v. Shevin et al., 404 U.S. 817, 92 S.Ct. 115, 30 L.Ed.2d 46 (1972). In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1970), the United States Supreme Court held that procedural due process requires the states to grant a hearing before merely suspending an individual's "important interests," i. e., his driver's license. The examples of entitlements cited by the Court in Bell might indicate that direct state involvement is necessary before the entitlement theory can be applied. Id. at 539, 91 S.Ct. 1586. See also Goldberg v. Kelly, 397 U.S. 254, 262-265, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969). Although cursory examination might indicate that no direct involvement is present in the case at bar, evaluation of the plaintiffs' interests tends to show that a constitutionally protected "entitlement" is indeed involved.

In both the Bell and Goldberg cases the United States Supreme Court carefully weighed the interests involved. The issue is thus presented as to whether or not plaintiffs have a constitutionally protected right or entitlement to gas service. It is not open to question that food, clothing and shelter are considered necessary to sustain life. However, unheated shelter affects life itself. In Palmer et al. v. Columbia Gas Co. of Ohio, Inc., 342 F.Supp. 241, at page 244, (N.D.Ohio, 1972), the trial court stated:

"The lack of heat in the winter time has very serious effects upon the physical health of human beings, and can easily be fatal. A sudden withdrawal of heating fuel can also result in severe damage to property, both real and personal.

"The evidence leaves no doubt whatever that the consequences of shutting off gas service inflicts hardships upon the consumer that far transcend the loss of driving privileges, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), delay in paying unemployment compensation, California Dept. of Human Resources Development v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971), or even the denial of direct relief payments, Goldberg v. Kelly, 397 U.S. 254 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). A person can freeze to death or die of pneumonia much more quickly than he can starve to death.

"Thus there is no question of the entitlement involved."

Plaintiffs cited Davis v. Weir, 328 F. Supp. 317 (N.D.Ga.1971) in their brief as support for the entitlement theory. In that case the Water Works shut off the plaintiff's water for his alleged failure to pay the monthly water bill. Although the evidence developed that his landlord was primarily responsible for payment of the water bill and the Court held that the water service must be restored since the plaintiff was not notified of the pending discontinuance of service, the Court also recognized that "water is an absolute necessity of life," and stated:

"In operating as a public service, and an apparent monopoly, the City necessarily is obligated to furnish water to all members of the municipality upon application subject only to the reasonable, nondiscriminatory rules and regulations of the Department of Water Works. The Court believes the fact that the City has undertaken to provide water to all members of the municipality upon application (which it has a duty to do) renders the important benefit bestowed by the City sufficiently analogous to an `entitlement' to satisfy any requirement along this line in the recent Supreme Court decisions. Goldberg v. Kelly, supra; Bell v. Burson, supra. Furthermore, the Court does not believe that lack of `privity' is determinative. The crucial factor in the instant case is that the effect of the collection procedure is to terminate an important benefit provided by a governmental agency (albeit at cost to the customer) without notice to the person who is the actual recipient of that benefit and who is the person who will suffer a serious loss without that benefit. This result is unacceptable under Goldberg v. Kelly, Bell v. Burson, and the due process clause of the Fourteenth Amendment. The City cannot terminate water service without notice to the actual user of the service — in this case, the plaintiff." (pp. 321-322).

Although the Davis case might arguably stand for the proposition that it should be limited to uses dealing with notice requirements under due process by municipally controlled and operated utilities, the Davis case indicates that the entitlement theory can be made applicable to the necessities of life, i. e., water.

In the Declaration of Independence of July 4, 1776, the Congress declared, in part:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The Preamble of the United States Constitution states that this great document proclaiming the very touchstones of democracy was enacted to promote, among other things, "the general welfare" of the people. Nothing is more basic to the American system of values, indeed mankind, than the continued existence of life itself. Protection of rights and entitlements affecting this basic principle is the responsibility of the judiciary operating within the framework established by the legislature. In sum, therefore, whatever the classification of utility services, be they rights, privileges, or...