# Flagg Bros., Inc. v. Brooks > Supreme Court of the United States · May 15, 1978 · 436 U.S. 149 URL: https://www.frixlaw.com/law-library/cases/9427186 ## Case - **Full name:** FLAGG BROS., INC., Et Al. v. BROOKS Et Al. - **Court:** Supreme Court of the United States - **Decided:** May 15, 1978 - **Citations:** 436 U.S. 149; 23 U.C.C. Rep. Serv. (West) 1105; 98 S. Ct. 1729; 56 L. Ed. 2d 185; 1978 U.S. LEXIS 90 - **Precedential status:** Published - **Opinion:** Dissent by Marshall - **Judges:** Rehnquist, Burger, Stewart, Blackmun, Powell, Marshall, Stevens, White, Brennan - **Cited by:** 2,219 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9427186 ## How later opinions describe it (automated extraction) - holding that “the settlement of disputes between debtors and creditors is not traditionally an exclusive public function,” and clarifying that “the conduct of private actors in relying on the rights established under [certain] liens to resort to self-help remedies does not per… - stating that “[w]hile the Constitution protects private rights of association and advocacy with regard to the election of public officials, [the Supreme Court] cases make it clear that the conduct of the elections themselves is an [e]xclusively public function.” - holding that the sale by a storage company of an individual’s property to enforce a lien on that property, pursuant to a provision of the New York Uniform Commercial Code, did not constitute “state action” for fourteenth amendment purposes. - explaining that where the only named 3 defendants were private parties, the “total absence of overt official involvement plainly 4 distinguishes this case from earlier decisions imposing procedural restrictions on creditors’ 5 remedies” - stating that among the functions that “have been administered with a greater degree of exclusivity by States and municipalities” were “such functions as education, fire and police protection, and tax collection” ## Opinion text Mr. Justice Marshall, dissenting. Although I join my Brother Stevens’ dissenting opinion, I write separately to emphasize certain aspects of the majority opinion that I find particularly disturbing. I cannot remain silent as the Court demonstrates, not for the first time, an attitude of callous indifference to the realities of life for the poor. See, e. g., Beal v. Doe, 432 U. S. 438, 455-457 (1977) (Marshall, J., dissenting); United States v. Kras, 409 U. S. 434, 458-460 (1973) (Marshall, J., dissenting). It blandly asserts that “respondent Jones . . . could have sought to replevy her goods at any time under state law.” Ante, at 160. In order to obtain replevin in New York, however, respondent Jones would first have had to present to a sheriff an “undertaking” from a surety by which the latter would be bound to pay “not less than twice the value” of the goods involved and perhaps substantially more, depending in *167 part on the size of the potential judgment against the debtor. N. Y. Civ. Prac. Law § 7102 (e) (McKinney Supp. 1977). Sureties do not provide such bonds without receiving both a substantial payment in advance and some assurance of the debtor's ability to pay any judgment awarded. Respondent Jones, according to her complaint, took home $87 per week from her job, had been evicted from her apartment, and faced a potential liability to the warehouseman of at least $335, an amount she could not afford. App. 44a-46a. The Court’s assumption that respondent would have been able to obtain a bond, and thus secure return of her household goods, must under the circumstances be regarded as highly questionable. * While the Court is technically correct that respondent “could have sought” replevin, it is also true that, given adequate funds, respondent could have paid her rent and remained in her apartment, thereby avoiding eviction and the seizure of her household goods by the warehouseman.. But we cannot close our eyes to the realities that led to this litigation. Just as respondent lacked the funds to prevent eviction, it seems clear that, once her goods were seized, she had no practical choice but to leave them with the warehouseman, where they were subject to forced sale for nonpayment of storage charges. I am also troubled by the Court’s cavalier treatment of the place of historical factors in the “state action” inquiry. While we are, of course, not bound by what occurred centuries ago in England, see ante, at 163 n. 13, the test adopted by the Court itself requires us to decide what functions have been “traditionally exclusively reserved to the State,” Jackson v. Metropolitan Edison Co., 419 U. S. 345, 352 (1974) (emphasis added). Such an issue plainly cannot be resolved in a historical vacuum. New York’s highest court has stated that “[i]n *168 [New York] the execution of a lien . . . traditionally has been the function of the Sheriff,” Blye v. Globe-Wernicke Realty Co., 33 N. Y. 2d 15, 20, 300 N. E. 2d 710, 713-714 (1973). Numerous other courts, in New York and elsewhere, have reached a similar conclusion. See, e. g., Sharrock v. Dell Buick-Cadillac, Inc., 56 App. Div. 2d 446, 455, 393 N. Y. S. 2d 166, 171 (1977) (“[T]he garageman in executing his lien ... is performing the traditional function of the Sheriff and is clothed with the authority of State law”); Parks v. “Mr. Ford,” 556 F. 2d 132, 141 (CA3 1977) (en banc) (“Pennsylvania has quite literally delegated to private individuals, [forced-sale] powers 'traditionally exclusively reserved’ to sheriffs and constables”); Cox Bakeries, Inc. v. Timm Moving & Storage, Inc., 554 F. 2d 356, 358 (CA8 1977) (Clark, J.) (by giving a warehouseman forced-sale powers, “the state has delegated the traditional roles of judge, jury and sheriff”); Hall v. Carson, 430 F. 2d 430, 439 (CA5 1970) (“The execution of a lien . . . has in Texas traditionally been the function of the Sheriff or constable”). By ignoring this history, the Court approaches the question before us as if it can be decided without reference to the role that the State has always played in lien execution by forced sale. In so doing, the Court treats the State as if it were, to use the Court’s words, “a monolithic, abstract concept hovering in the legal stratosphere.” Ante, at 160 n. 10. The state-action doctrine, as developed in our past cases, requires that we come down to earth and decide the issue here with careful attention to the State’s traditional role. I dissent. New York’s replevin statutes have been challenged by poor persons on the ground that they violated equal protection because the poor could not obtain the required “undertaking.” See Laprease v. Raymours Furniture Co., 315 F. Supp. 716 (NDNY 1970) (three-judge court); Tamburro v. Trama, 59 Misc. 2d 488 , 299 N. Y. S. 2d 528 (1969). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9427186. Public record. Not legal advice.