Opposition — Memphis Light, Gas & Water Div. v. Craft

MICHAEL RODAK, JR..CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

| October Term, 1976

NO. 76-39

MEMPHIS LIGHT, GAS AND WATER DIVISION, et. al.

Petitioners,

V.

WILLIE S. CRAFT, et. al.

Respondents

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

Thomas M. Daniel

MEMPHIS AND SHELBY COUNTY

LEGAL SERVICES ASSOCIATION

531 South Parkway, East

Memphis, Tennessee 38106

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-39

MEMPHIS LIGHT, GAS AND WATER DIVISION, et. al.

Petitioners,

Vv.

WILLIE S. CRAFT, et. al.

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix A of

Petition) is now reported at 534 F.2d 684. The opinion of

the District Court is not reported, but is printed as

Appendix B of the Petition.

JURISDICTION :

The jurisdictional requisites are adequately set forth

in the Petition.

QUESTION PRESENTED

1. Whether continued utility service is a property

interest which is protected by the Due Process Clause of the

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the Fourteenth Amendment

and the Charter of the City of Memphis are set forth in

Appendix C of the Petition.

STATEMENT OF THE CASE

This case was initiated penta to 42 U.S.C. 81983

on behalf of four plaintiffs alleging due process violations

stemming from petitioners’ terminations of service and re-

fusal to initiate service. One plaintiff, whose discontinuance

occured due to her failure to pay charges for usage "about

which there was no dispute" has been dismissed. Craft v.

Memphis Light, Gas and Water Division, 534 F.2d 684, 685 n.l

(6th Cir. 1976). Another plaintiff's claim (Ida Bell Holmes)

that petitioners' refusal to initiate service to her was a

violation of the equal protection clause was upheld by the

Sixth Circuit and petitioners seek no review ee that portion

of the decision. Nor is review sought concerning the Sixth

Circuit's holding with regard to Ms. Sarah Parks.

The remaining respondents present a factual situation

of a municipally owned utility company terminating service

when a bona-fide dispute as to customer liability exists.

With respect to respondent Crafts (representing a family of

13) the failure of petitioners to provide any procedures for

resolution of disputed billings (either before or after termi-

nation) resulted in at least four separate terminations of

utility service due to petitioners’ erroneous double billing

for services rendered. It is from the Sixth Circuit Court of

Appeals cecision, holding that a summary termination proce-

dure (as applied to respondents) was insufficient under the

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ARGUMENT

we

There Is No Conflict Of Decisions

Of The United States Courts of Appeals

The singular issue! raised by this case is whether

respondents possess a sufficient “property interest” in

utility services to invoke the procedural protections of the

Due Process Clause. In contrast to petitioner's representa-

tion to the Court, no current conflict with respect to this

issue is currently present in the circuits. ‘Two decisions

alluding to the matter are in accord with the Sixth Circuit.

Davis v. Weir, 497 F.2d 139, 144 (Sth Cir. 1974), implicitly

found a property interest in water service for purposes of

the Equal Protection Clause, and Lucas v. Wisconsin Electric

Power Co., 466 F.2d 638 (7th Cir. 1972), cert. denied, 409

U.S. 1114 (1973) assumed a property right in continued ser-—

vices, although holding that the private power company did

not meet the "state action" requirement.

The analysis provided by the Third Circuit in Jackson

v._ Metropolitan Edison Co., 483 F.2d 754 (3rd Cir. 1973), aff'd,

419 U.S. 345, while alluding to the non-property status of

utility services, 483 F.2d at 762, based its holding on the

failure to successfully raise a 1983 claim in the absence of

making the necessary showing of state action. 483 F.2d at

758-61. In affirming Jackson, this Court limited its decision

1 Petitioner attempts to raise collateral issues which

are either: (1) of no constitutional significance; or (2)

not properly before the Court. Being a municipally owned

utility, there is obviously the necessary "state action" for

a 1983 claim. While some argument is made concerning the

constitutional scope of hearing procedures under the Due

Process Clause, it is quite obvious that the complete lack

of any grievance mechanism fails to meet the rudimentary

requirement for informal hearings. See. ead Maryicocas: «+:

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to the state action question and expressed no opinion concern-

ing whether utility service was “property” for purposes of

the Due Process Clause. Jackson v. Metropolitan Edison Co.,

/

It is thus apparent that no conflict cf

419 U.S. 345, 359.

decisions exists among the Courts of Appeals.2

It.

No Substantial Reason Exists

For Granting The Writ

The court below "implicitly assumed" that a claim to

continued utility service constitutes "property" for due

process purposes. Two decisions this past Term, however, clear-

ly establish that the right asserted by respondents in this

case carries with it the protections of Due Process. As such,

the decisior below does not present an important question of

federal law not heretofore settled by this Court.

In Paul v. Davis, 96 S.Ct. 1155 (1976),.the Court

referred to its past approaches to defining property interests

protected by procedural due process? and concluded that ab-

sent the deprivation of a right previously held under state

law, invocation of procedural safeguards was improper. Adqain,

in Bishop v. Wood, 96 S.Ct. 2074 (1976), the Court denied a

public employee's claim to a due process hearing on the basis

2 Also significant is the fact that a number of District

Court holdings on the issue are in accord with the Sixth Circuit.

See Koger v. Guarino, 44 U.S.L.W. 2528 (E.D.Pa. 1976); Condosta

v. Vermont Electric Cooperative, Inc., 400 F. Supp. 385, 365-366

(D.Vt. 1975); Donnelly v. City of Eureka, 399 F. Supp. 64, 67-68

(D.Kan. 1975); Limuvel v. Southern Union Gas Co., 378 F. Supp.

964, 966-67 (W.D.Tex. 1974); Bronson v. Consolidated Edison Co.,

upp. 443, 447 (S.D.N.Y. 1972); Stanford v. Gas Service

. Supp. 717, 721 (D.Kan. 1972).

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5 As stated in Board of Regents v. Roth, 408 U.S. 564,

577: '

[Property interests] are not created by the Consti-

cution. Rather, they are created and their dimensions

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that his employment --as defined by state law--was not a

“property interest," i.e., the position was held at the will

and pleasure of the state.

In contrast to these holdings it is clear that under

Tennessee state law, respondents are entitled to services

provided by petitioners after having paid required deposits

and all charges validly assessed4 by petitoners.5 crumley

Vv. Watauga Water Co., 99 Tenn, 420, 41 S.W. 1058 (1897). It

is well settled under state law, that a utility company is

charged with a public duty of furnishing utility service to

all inhabitants of the city of its location without discri-

mination and without denial except for good and sufficient

cause. Farmer v. Mayor and City Council of Nashville, 127

Tenn. 509, 156 S.W. 189 (1913). Thus, petitioners, in ter-

minating the utility service of respondents, have deprived

them of a right or status which is recognized by state law.

The Court of Appeals decision, therefore, is in accord with

the recent decisions of this Court.

4 With respect to this issue, it should also be

noted that although not sanctioned by Rule 19, petitoner

raises as a ground for granting the writ an alleged conflict

between the Sixth Circuit and the Tennessee Supreme Court

on the issue of whether the providing of utility service is

a property right. The state cases relied upon, however,

Patterson v. City of Chattanooga, 192 Tenn. 267, 241 S.W.24

291 (1951), and Jones v. Mayor, Etc. of Nashville, 109 Tenn.

550, 72 S.W. 985 (1903), only relate to a loss of the "right"

for nonpayment of correctly imposed charges, a proposition

not disputed by respondents or the Court below.

> Accord, Lucas v. Wisconsin Electric Power Co., 466

F.2d 638, 646 n. 13 (7th Cir. 1972) ("right" to utility

service pursuant to the Wisconsin code.)

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CONCLUSION

For the foregoing reasons it is respectfully submitted

that this petition for a writ of certiorari should be denied.

Respectfully submitted,

as M. Daniel

Counsel for Respondents

Certificate Of Service

This is to certify that I have served upon opposing

counsel this Brief for Respondent In Opposition by mailing

a copy thereof to Mr. Frierson M. Graves, Jr., 2020 First

"a Bank Building, Memphis, Tennessee 38103 on this

6 day of August, 1976.

.

7 Y a

mM. Dural

DANIEL

OMAS M.