Parks v. Mr. Ford

JAMES HUNTER, III, Circuit Judge,

concurring:

While I concur in the essential reasoning and the result of the majority, I wish to clarify my understanding of some implications in the majority opinion.

I.

A.

In Part II.A. of its opinion, the majority notes that this case does not present the issue of state court enforcement of the garagemen’s liens. It is my understanding that the result in this case would not differ even if the state courts had in some way become involved in upholding the liens.

Every activity permitted under state common or statutory law, any activity that has legal consequences, can be transformed into a right enforced by state courts if the parties so chose. Alexander, Cutting the Gordian Knot: State Action and Self-Help Repossession, 2 Hastings Const.L.Q. 893, 896-99 (1975); Note, Procedural Due Proc ess-Post-Fuentes Constitutionality of Garagemen’s Liens, 54 B.U.L.Rev. 542, 550-51 (1974). For example, the state courts would have enforced defendants’ right to retain these automobiles against any attempt by plaintiffs to replevy them. If the state action analysis of these possessory liens turned upon the presence or absence of such state court involvement, the due process requirements attending the same conduct would vary from case to case. Surely the due process consequences of possessory liens should not vary at the whim of the private actors.

The “enforcement” doctrine of Shelley v. Kraemer, 334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 (1948), and Barrows v. Jackson, 346 U.S. 249 , 73 S.Ct. 1031 , 97 L.Ed. 1586 (1953), would, if expanded to its logical conclusion, completely emasculate the concept of state action. See Black, Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv.L.Rev. 69, 94-95 (1967). It must be, therefore, and has been, cabined within the extraordinary jurisprudence of racial discrimination. The Supreme Court, 1968 Term, 83 Harv.L.Rev. 60, 118 & n.21 (1969). I do not understand the majority opinion to suggest otherwise.

*163 B.

I concur with the reasoning in Part II.B. of the majority opinion, but I wish to express my understanding of the majority’s reasoning in Part II.C. I do not understand the majority to hold that all private activity permitted under the common law is purely private, while all private activity permitted under statutes is automatically state action. Both sources of law — common law and statutes — give rise to rules that can be stated as positive maxims for conduct; therefore, to regard one form of rules as state “encouragement” and the other merely as passive permission would seem irrational. Cf. Illinois v. City of Milwaukee, 406 U.S. 91 , 92 S.Ct. 1385 , 31 L.Ed.2d 712 (1972) (for purposes of federal question jurisdiction, “laws” includes both common law and statutes).

Furthermore, it is not at .all clear why the meaning of the due process clause should turn upon painstaking and often barren analysis of the extent to which conduct was allowable at common law or by statute. It will often prove difficult, both for individuals and for courts, to determine precisely what the common law provided and the degree to which statutes have altered it. Compare, e. g., King v. South Jersey Nat'l Bank, 66 N.J. 161 , 330 A.2d 1 (1974) (self-help repossession has “roots deep in the common law”), with, e. g., Gibbs v. Titelman, 369 F.Supp. 38 (E.D.Pa.1973), rev’d, 502 F.2d 1107 (3d Cir.), cert. denied sub nom. Gibbs v. Garver, 419 U.S. 1039 , 95 S.Ct. 526 , 42 L.Ed.2d 316 (1974) (self-help repossession not “a historically sound principle of the common law”).

Finally, distinguishing on the basis of common law versus statutory rules could mean that precisely the same conduct— sanctioned by the common law in one state and by statute in another — would entail different due process consequences in different states. Certainly the Constitution ought to visit the identical consequences upon the same conduct in Pennsylvania and in New Jersey.

Nonetheless, one aspect of state action analysis — the public function inquiry — can be affected in a limited way by the common law origin of a particular right. This would occur, for example, when it appears that a particular right of action has never been considered an attribute of sovereignty in a historical sense. As the majority opinion indicates, the repairman’s right to retain an object pending payment for his repairs did not spring solely from the power of the state to resolve conflicts. Indeed, it is a form of private conflict resolution 1 dating from ancient times, in which the power of the state usually is not implicated at all. Note, Procedural Due Process — Post-Fuentes Constitutionality of Garagemen’s Liens, 54 B.U.L.Rev. 542, 554 (1974); Note, Possessory Liens: The Need for Separate Due Process Analysis, 16 Wm. & Mary L.Rev. 971, 996 (1975). See generally McCall, The Past as Prologue: A History of the Right to Repossess, 47 S.Calif.L.Rev. 58 (1973). And, as I pointed out above, state protection of the lienholder’s right to possession, see e. g., Hammonds v. Barclay, 102 Eng.Rep. 356, 359 (K.B. 1802), does not automatically transform that possession into an attribute of sovereignty, any more than state protection of a lessee’s possession would automatically transmute the lessee’s possession into such an attribute. See also Davis v. Richmond, 512 F.2d 201, 204-05 (1st Cir. 1975). The right to retain the automobile pending payment, then, is not an attribute of the state’s sovereignty.

In addition to the historically private nature of possessory liens, it remains true that they are effected without reliance on state power in the guise of a sheriff or other officer. See Gibbs v. Titelman, 502 F.2d 1107, 1114 (3d Cir.), cert. denied sub nom. Gibbs v. Garver, 419 U.S. 1039 , 95 S.Ct. 526 , 42 L.Ed.2d 316 (1974). Therefore, I concur *164 in the court’s refusal to hold that private action pursuant to a garageman’s lien amounts to state action.

II.

In Part III. of its opinion, the majority concludes that the statutory grant to garagemen of the power to sell a vehicle for nonpayment does amount to the delegation of a public function. The majority appears to place great weight on the fact that the statute declares that such a sale will be “as conclusive to the title conveyed as if sold by a sheriff or constable,” Pa.Stat.Ann. tit. 6, § 14 (Purdon’s 1963). I agree that the garageman’s sale does involve state action, but I do not believe that the words granting the power of sale have any effect on the result.

Until the passage of Pennsylvania’s statute — and those like it in other states— granting the power of sale, the authority to divest an owner of any and all rights in his property was vested exclusively in the state. R. Brown, The Law of Personal Property § 119 (1955). Indeed, any sale to foreclose a possessory lien rendered the lienholder liable in conversion; he was required instead to obtain judgment and levy execution on the chattel. Comment, California Garagemen’s Liens — Impact and Aftermath of Adams v. Department of Motor Vehicles, 6 Pac.L.J. 98, 100 (1975). It follows that one who undertakes to sell a chattel held pursuant to a possessory lien performs a function traditionally carried out exclusively by the sovereign. 2

Thus, the garageman who sells an automobile because his debtor has defaulted acts as an agent of the state. The words in which this power is clothed and the form of its grant — common law or statutory — must not be dispositive. 3 Otherwise, the state could manipulate its laws in order to change the due process implications of essentially identical activities. The due process clause ought not to be left so susceptible to circumvention.

III.

To the extent that my comments reflect a proper understanding of the majority opinion, I concur therein.

. The state probably could, if it so chose, arrogate to itself all modes of conflict resolution. So, too, might it be able to provide that all contracts, in order to be enforceable, must receive state approval; however, I should not think that the mere existence of this possibility would ipso facto transmute into state actions all the private contracts entered into under the existing common and statutory law.

. Moreover, it may be that the power to determine finally — as opposed to temporarily — the ownership rights in a chattel, because of the drastic consequences, is necessarily an attribute of sovereignty; perhaps only the state ought to be able to declare that a particular person within its jurisdiction has, under its law, lost all rights with respect to a chattel. Remission of such final and complete divestitures to private resolution by an interested party may amount to the abdication of one of the essential duties of any government — the ultimate safeguarding of property. See generally T. Hobbes, Leviathan ch. 18, fl 7 (1651); J. Locke, Concerning Civil Government, Second Essay ch. IX, ¶¶ 123-25, ch. XI, ¶ 137 (1690); C. Montesquieu, The Spirit of Laws bk. VI, ch. 1 (1748); 2 F. Pollock & F. Maitland, The History of English Law 149-50 (2d ed. 1968). (The holding in Gibbs v. Titelman, 502 F.2d 1107 (3d Cir.), cert. denied sub nom. Gibbs v. Garver, 419 U.S. 1039 , 95 S.Ct. 526 , 42 L.Ed.2d 316 (1974), did not reach the private party’s power to sell a repossessed chattel; it dealt only with a temporary deprivation.) Fortunately, we need not in this case resolve the broader question about the status of any private sale as a public function, since sale following the rise of a possessory lien is clearly a traditional function of the sovereign.

. The historical origins of a particular right and its form of grant, together with the state of the law as of the passage of the fourteenth amendment, are not separate tests for state action. Rather, they are clues in the puzzle as to whether or not a given private activity is a delegated “public function,” an attribute of sovereignty in our legal order.