# King v. South Jersey National Bank

> Supreme Court of New Jersey · December 10, 1974 · 66 N.J. 161

URL: https://www.frixlaw.com/law-library/cases/9758779

## Case

- **Full name:** William B. King, Plaintiff-Appellant, v. South Jersey National Bank, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** December 10, 1974
- **Citations:** 66 N.J. 161; 330 A.2d 1; 75 A.L.R. 3d 1030; 15 U.C.C. Rep. Serv. (West) 969; 1974 N.J. LEXIS 152
- **Precedential status:** Published
- **Opinion:** Concurrence by Clifford
- **Judges:** Hughes, Clifford, Pashman
- **Cited by:** 59 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/9758779

## Opinion text

Clifford, J.
(concurring). I agree with the majority’s decision to uphold the validity under the state constitution of self-help repossession by holders of security interests. I also am in accord with the declaration that N. J. S. A. 12 A: 9-503 does not contravene federal due process requirements for want of the requisite finding of “state action.” But I am obliged to express my disagreement with those portions of the rationale expressed in the majority opinion which unduly stress the “passivity” and “neutrality” of legislative reenactment of the common law, inasmuch as I fear that language may cloud rather than clarify the law under which later cases will arise.
The right of the creditor to exercise self-help and recapture the collateral upon default in the payment of the underlying obligation has long been recognized, albeit with varying degrees of legal restraint over the centuries. See generally McCall, “The Past as Prologue: A History of the Right to Repossess,” 47 S. Cal. L. Rev. 58 (1973). But to emphasize, as the Court’s opinion does, that codification of a right which, in some essential form, was recognized in the past determines whether state action of a constitutional magnitude exists is, at best, disturbing and, at worst, seriously misleading.
*180 The legislature did something when it enacted N. J. S. A. 12A:9-503. The state was not passive. In effect, it sanctioned and perhaps even encouraged creditors in their use of self-help repossession. But I do not understand that act to be the sort of affirmative conduct giving rise to state action of a constitutional grain. See Burke & Reber, “State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment,” 46 S. Cal. L. Rev. 1003 , 1097-1114 (1973) & 47 S. Cal. L. Rev. 1 , 13-14 (1973).
N. J. S. A. 12A:9-503 permits a creditor to exercise self-help in retaking property in which he possesses a valid security interest. The statute in no way commands the creditor so to do — it simply authorizes. And mere authorization of private conduct does not ex necessitate comprise “state action.” To hold that the passage of such a law invokes the Fourteenth Amendment would draw within the ambit of the term “state action” activity expressly or by implication covered by statute, as well as private conduct in other fields — business and otherwise — which in the slightest insignificant manner would be affected or influenced by legislation. Not much imagination need be summoned to detect the dangers implicit in such an expansive definition of “state action.” I favor here a course of restraint, not only to obviate the necessity of reckoning with such dangers in future cases but also to reduce that uncertainty in the law which causes rather than avoids hardship. I steer clear of distorting beyond recognition the meaning of “state action ”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758779. Public record. Not legal advice.