Joyce Shirley v. State National Bank of Connecticut

IRVING R. KAUFMAN, Chief Judge

(dissenting):

On or about August 23, 1972, the State National Bank of Connecticut seized a Ford Thunderbird in the possession of Joyce Shirley without so much as notifying her in advance, affording her an opportunity to abort the seizure at a prior hearing, or, by any other means, obtaining her meaningful consent. 1 My brothers dp not reach the question whether the Bank’s conduct was in conflict with the fundamental safeguards provided by due process because they, like the court below, cannot discern the “state action” requisite to establishing a violation of the Due Process Clause of the Fourteenth Amendment. Since I am of the view that the lawful non-eonsen-sual taking of property is a uniquely governmental function, I consider its exercise, whether by state officials or by private individuals so empowered, subject to the due process constraints functionally required to avoid arbitrary deprivations. Accordingly, I must respectfully dissent.

The linchpin of the majority’s reasoning is that

since peaceful repossession existed at common law in Connecticut, the mere codification of that right does not, in our view, constitute state action. No delegation of traditional state power has been granted to any private person. 2

Indeed, this reliance on the creditor’s right to repossess at common law is highlighted by comparison of the instant holding with our recent decision in Hernandez v. European Auto Collision, Inc., 487 F.2d 378 (2d Cir. 1973). In Hernandez , we did not hesitate to reverse the dismissal of a complaint in an action where plaintiff challenged the constitutionality of the sale provisions of New York State’s garageman’s lien statute 3 on the ground that the lienor’s power to sell the automobile without an opportunity for a prior hearing violated due process. Yet, the only distinction, frail indeed, between this case and Hernandez is that the private power to repossess existed at common law while in Hernandez the lienor’s right to sell the encumbered chattel did not. 4 It is inconceivable that the fundamental right to be free of arbitrary deprivations of property should turn on the now disfavored theory of title passage 5 upon which the dif *746 fering rights of the conditional seller and the lien holder rested at common law. Instead, as one commentary aptly noted:

The fact that the law under attack is new and creates, rather than codifies, common law rights should not change the inquiry. The focus for state action purposes should always be on the impact of the law upon private ordering, not the law’s age or historical underpinnings. Unless the law in some fashion significantly interferes with private ordering, the challenged conduct should not be attributed to the state. To make state action turn upon whether the statutory right being asserted has common law origins would lead to anomalous results. The identical private conduct, pursuant to the identical state statutory or judicial law, would be state action in some states while not in others depending solely upon the fortuitous and unimportant circumstance of the age and history of the law.

W. Burke & D. Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 47 (1973); 6 Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 265 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). Accordingly, unlike the majority, my analysis of the “state action” question begins rather than ends with the observation that the right of peaceful repossession without a hearing was recognized under the common law of Connecticut.

In merely codifying the common law right of reposséssion, Conn.Gen.Stat. Rev. § 42-98(a) faithfully incorporated the common law limitation on self-help, namely, that it be “without breach of the peace.” If peaceful repossession were the equivalent of retaking with the consent of the property holder then I would applaud the wisdom of our forefathers in recognizing that negotiation is a far superior method of dispute resolution than is recourse to governmental disposition. But, the private right of repossession under common law, and as duly reflected by Conn.Gen.Stat.Rev. § 42-98(a), was not so narrowly defined. Peaceful repossession could also be effected, as indeed it was in this case,by silence and stealth. 7 It is this private, non-consensual taking, clothed in legitimacy first at common law and now by statute, which I find utterly inconsistent with and a total abdication of, the state’s obligation to provide the minimal safeguards of procedural due process before an individual can be lawfully deprived of his property without his consent.

Why, after all, is the concept of due process considered so fundamental in our American constitutional system? Justice Harlan, in speaking for a majority of the Court in Boddie v. Connecticut, 401 U.S. 371, 374-375 , 91 S.Ct. 780, 784 , 28 L.Ed.2d 113 (1971), eloquently opined:

Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a “legal system,” social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achieve *747 ments without the anxieties that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the “state of nature.”

American society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically placed individuals, but on the common-law model. It is to courts, or other quasijudicial official bodies, that we ultimately look for the implementation of a regularized, orderly process of dispute settlement. Within this framework, those who wrote our original Constitution, in the Fifth Amendment, and later those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due process in the operation of this system. Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State’s monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just. It is upon this premise that this Court has through years of adjudication put flesh upon the due process principle.

To be sure, Justice Harlan added that “private structuring of individual relationships and repair of their breach is largely encouraged in American life. . . . ” Id. at 375 , 91 S.Ct. at 785 . The crucial point, however, is that our system of laws is bedrocked in the principle that the State has a “monopoly over techniques for binding conflict resolution.” Moreover, the decisive difference between “binding conflict resolution,” on the one hand, and “private structuring and . . . repair,” on the other, is the element of voluntary, mutual consent, the presence of which permits the latter just as its absence requires the former. Accordingly, where, as here, the creditor is empowered, whether by common law or by statute, to unilaterally resolve a conflict, he is acting within a sphere reserved for the state alone and, therefore, his power, like state power, must be fettered by the restraints of due process.

Under the so-called “public function” test, 8 then, self-help repossession is infused with the requisite “state action” because the creditor acts pursuant to a grant of the state’s monopoly power to lawfully seize a significant property interest without the consent of the holder. I would reach the same conclusion by applying the “state action” analysis proffered by my brother Friendly in his oft cited lecture, The Dartmouth College Case and The Public-Private Penumbra (1968) at 18, since the “ . . . private action [self-help repossession] has resulted in a general and serious denial of values the [Fourteenth] Amendment was meant to protect. . . . ” 9 Accordingly, finding the Bank’s summary seizure of plaintiff’s auto permeated with the necessary “state action,” I would reverse.

. As in Fuentes v. Shevin, 407 U.S. 67, 94-96 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972), the fact that the plaintiff signed a form contract which authorized self-help repossession will not immunize a seizure, under a waiver theory, where it is otherwise defective because the property is seized without prior notice and an opportunity for a hearing. The absence of consent in the taking itself cannot be cured by resorting to the meaningless ritual of utilizing a contract of adhesion in which the fine print, even if read, fails to mention that the debtor has any right to a pre-seizure hearing.

. The majority’s holding in Adams v. Southern Cal. First Nat’l Bank, 492 F.2d 324 (9th Cir. 1973), similarly rests on the premise that “mere codification” of the common law cannot supply the requisite “state action.”

. N.Y. Lien Law § 200 et seq. (McKinney’s Consol.Laws, c. 33, Supp.1972).

. L. Hall, Possessory Liens in English Law 67 (1917).

. See Uniform Commercial Code § 9-202.

. Although I agree with the authors’ reasoning, I cannot accept their resolution of this anomaly — to consider both self-help repossession and the sale of liened goods outside the purview of the Due Process Clause. W. Burke & D. Reber, supra, 47 S.Cal.L.Rev. at 46. Rather, in rejecting the attenuated subtleties that dictated the respective rights of debtors and creditors at common law, I would follow our holding in Hernandez v. European Auto Collision, Inc., supra, and demand that the requirements of due process must be met here as well.

. Although we have before us only the bare bones of the complaint, it is undisputed that the plaintiff was not notified in advance that her car would be taken. Indeed, the car had been brought to a garage for repair and the plaintiff was outside the state at the time of the repossession, according to the complaint.

. See Evans v. Newton, 382 U.S. 296 , 86 S.Ct. 486 , 15 L.Ed.2d 373 (1966) ; Marsh v. Alabama, 326 U.S. 501 , 66 S.Ct. 276 , 90 L.Ed. 265 (1946) ; Smith v. Allwright, 321 U. S. 649 , 64 S.Ct. 757 , 88 L.Ed. 987 (1944) ; Hall v. Garson, 430 F.2d 430 (5th Cir. 1970) ; cf. Coleman v. Wagner College, 429 F.2d 1120 (2d Cir. 1970).

. By adopting this functional approach, one can easily distinguish the instant case from Moose Lodge No. 107 v. Irvis, 407 U.S. 163 , 92 S.Ct. 1965 , 32 L.Ed.2d 627 (1972). Although the Fourteenth Amendment was not intended to interfere with the private ordering of interpersonal relationships and indeed, the tension between the First and Fourteen ch Amendments in this respect is well-recognized, see, e. g., id. at 179 , 92 S.Ct. 1965 (Douglas, J. dissenting), it was clearly designed “to protect [an individual’s] use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property . ” Fuentes v. Shevin, supra, 407 U.S. at 81, 92 S.Ct. at 1994 , 32 L.Ed.2d 556 . Self-help repossession, without consent of the debtor whose property is seized, cannot fairly be characterized in any other way.