Opposition Brief — Winters v. Board of County Commissioners

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ANNABELLE WINTERS d/b/a

SHARP’S PAWN SHOP,

Petitioner,

Vv.

BOARD OF COUNTY COMMISSIONERS OF OSAGE

COUNTY, OKLAHOMA, OSAGE COUNTY SHERIFF’S

DEPARTMENT, GEORGE WAYMAN, Individually

and as Sheriff of Osage County,

ALLEN LANDSDOWN, Individuaily and as

Deputy Sheriff, DALE PENNY, Individually

and as Deputy Sheriff,

Respondents and

Cross-—Petitioners

RESPONDENTS’ OPPOSITION TO PETITIONER’S

PETITION FOR A WRIT OF CERTIORARI

DAVID W. LEE*

LEE, COLLINS & FIELDS, P.C.

818 N.W. 63rd Street, Suite 100

Oklahoma City, Oklahoma 73116-7699

(405) 848-1983

ATTORNEY FOR RESPONDENTS AND

CROSS—-PETITIONERS

* Counsel of Record

« ee te

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS WHY THE PETITION SHOULD

BE GRANTED

THE PORTION OF THE OKLAHOMA

PAWNBROKER ACT, OKLA. STAT.

TIT. 12, § 1515(A), WHICH

REQUIRES PAWNBROKERS TO

PROVIDE TO LOCAL LAW

ENFORCEMENT AGENCIES

INFORMATION CONCERNING THE

PAWN TRANSACTION DOES NOT

VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH

AMENDMENT, DESPITE THE FACT

THAT BANKS ARE PHOHIBITED FROM

DISCLOSURE OF THIS INFORMATION

BY FEDERAL STATUTES

CONCLUSION

Page

16

1i

TABLE OF AUTHORITIES

Page

Cases

Dallas v. Stanglin,

490 U.S. 19 (1989) .- < eee 15

Danbridge v. Williams,

: 2 Oe yt ee a | rrr Oye SS

Ely v. Department of Justice,

610 F. Supp. 942 (D.C. Tid. 1965) . . 71

In re Grand Jury Proceedings,

Sse F.260 81 (Sth Cie. VEO) « « «ae Te

Gregory v. Ashcroft, U.S. P

111 S. Ct. 2395 (1991) os 4 & sus tae

Miller v. United States, 630 F. Supp.

347 (E.D. N.Y. 1986) 11

New York v. Burger, 482 U.S. 691 (1987) 15

S & S Pawnshop v. City of Del City,

Dat Vue Sa CIGEn CSE. Feet «a « eee

State of Oklahoma v. Shelly Dean,

CRF-88-191 a,3

Thomas v. United States Department of

Energy, 719 F.2d 342

creer CEP. HRS) Ǥ 0 2 6% 8 Oe eee

Vance v. Bradley, 440 U.S. 93 (1979) . 14

Winters v. Board of County

Commissioners, 4 F.3d 848

Pewee Gar. Veeoy « « « s © & Bee

142,174,133

1ij

Statutes and Rules

5 U.S.C. § 552a

5 U.S.C. § 552a(b)

12 U.S.C. §§ 3401-3422

42 U.S.C. § 1983

S$. Ct. RW. 12.1(14)

Be GE. R. V2.3

Okla. Stat. tit. 12, § 1515(A)

Okla. Stat. tit. 22, § 991a-3

Okla. Stat. tit. 59, § 1508(~A)

Okla. Stat. tit. 59, § 1515

Okla. Stat. tit. 59, § 1515(A)

10,13

12

10,12,13

5

5

No. 93-1248

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ANNABELLE WINTERS d/b/a

SHARP’S PAWN SHOP,

Petitioner,

Vv.

BOARD OF COUNTY COMMISSIONERS OF OSAGE

COUNTY, OKLAHOMA, OSAGE COUNTY SHERIFF'S

DEPARTMENT, GEORGE WAYMAN, Individually

and as Sheriff of Osage County,

ALLEN LANDSDOWN, Individually and as

Deputy Sheriff, DALE PENNY, Individually

and as Deputy Sheriff,

Respondents and

Cross-—-Petitioners.

RESPONDENTS’ OPPOSITION TO PETITIONER’S

PETITION FOR A WRIT OF CERTIORARI

The Respondents Board of County

Commissioners of Osage County, Osage

County Sheriff’s Office, George Wayman,

Allen Landsdown and Dale Penny file this

brief in opposition to the Petitioner’s

Petition for a Writ of Certiorari. The

Respondents Landsdown and Penny are also

filing, contemporaneously with this

2

Opposition, a Cross-Petition pursuant to S.

See Me Vee Be

STATEMENT OF THE CASE

On November 9, 1988, a ring was stolen

from its owner, George Ward, by his niece,

Shelly Dean. The Respondent and Cross-

Petitioner Dale Penny, a deputy with the

Osage County Sheriff’s Office, investigated

the theft of the ring, and on December 8,

1988, Penny signed and filed a probable

cause affidavit. This caused _ felony

Criminal charges to be filed against Shelly

Dean, and an arrest warrant to be issued

for her arrest in State of Oklahoma v.

Shelly Dean, CRF-88-191.

On March 1, 1989, the Respondent and

Cross-Petitioner Allen Landsdown, a deputy

with the Osage County Sheriff’s Office,

went to Winters’s pawnshop (which is knows

as Sharp’s Pawnshop) to check on property

with regard to an unrelated burglary.

Under an Oklahoma statute, Okla. Stat. tit.

3

59, § 1508(A), Landsdown was entitled to

inspect all pawned goods on the premises of

a licensed pawnshop. While Landsdown was

at the pawnshop, Deputy Penny called and

told Landsdown that the ring stolen by

Shelly Dean was on the premises of the

pawnshop.

Acting on instructions from the

Petitioner Penny, who, as noted previously,

had signed the probable cause affidavit

with regard to the ring, the Petitioner

Landsdown seized the ring from Winters’s

pawnshop. The ring was subsequently used

as evidence in criminal proceedings in

State v. Shelly Dean, CRF-88-191.

On April 14, 1989, a preliminary

hearing was held in State of Oklahoma v.

helly Dean, CRF-88-191. At that hearing,

George Ward identified the ring as his.

On August 28, 1989, the thief, Shelly

Dean, entered a piea of no contest to the

charges in CRF-88-191. During that hearing

4

she was ordered to pay $60.00 in

restitution, which was the amount of the

pawn transaction when she pawned the ring

at Sharp’s Pawnshop on November 9, 1988.

On September 15, 1989, a check in the

amount of $60.00 from the Osage County

District Attorney’s Victim Restitution Fund

was issued to Winters as_ restitution

ordered by the court pursuant to the plea

of no contest by Shelly Dean. This

restitution check was sent to Winters

pursuant to the provisions of Okla. Stat.

tit. 22, § 991a-3. This check covered the

amount paid by Winters’s employee to Shelly

Dean when she pawned the ring. Winters has

refused to cash the check, and it is in the

possession of Winters’s attorney.

On September 28, 1989, after Shelly

Dean’s plea, and after the restitution

check had been sent to Winters, the ring

was returned to its rightful owner, George

5

Ward. It is uncontroverted that Winters

is not the owner of the ring.

Winters filed this lawsuit pursuant to

42 U.S.C. § 1983,' alleging that the seizure

and return of a ring by law enforcement

officers violated her rights under the

United States Constitution. The Petitioner

also contended that an Oklahoma statute

which required pawnbrokers to disclosure

information concerning transactions with

their customers, violated the Equal

Protection Clause because banks were not

required to do so because of federal

privacy statutes. The Cross-—Petitioners

Landsdown and Penny, the two deputies with

the Osage County Sheriff’s Office, and the

Board of Commissioners of Osage County

("County") filed a motion for summary

judgment, and Winters filed a response and

cross motion for summary judgment.

This is the basis of federal

| jurisdiction. S. Ct. R. 12.1(i).

6

On May 15, 1991, Magistrate Judge John

Leo Wagner issued a Report and

Recommendation of U.S. Magistrate Judge, in

which he granted all Defendants’ motion for

summary judgment, and denied Winters’

motion for summary judgment. Winters

objected to the report of the magistrate

judge.

On February 13, 1992, the Honorable

James O. Ellison affirmed the magistrate

judge’s report in all respects.

Winters then appealed the granting of

summary judgment to the United States Court

of Appeals for the Tenth Circuit. On

September 2, 1993, the Court of Appeals

reversed the district court’s opinion in

part. Win Vv Boar f n

Commissioners, 4 F.3d 848 (10th Cir. 1993).

The court reiterated its previous holding

that the pawnshop was a closely regulated

industry in Oklahoma because of state

statutes regarding inspections. Id. at

ee

7

852; S_& S Pawnshop v. City of Del see.

847 F.2d 432, 436-37 (10th Cir. 1991). The

court also held that because of Okla. Stat.

tit. 59, § 1508, the officer was entitled

to examine the stolen ring. Winters, 4

F.3d at 854. However, because Landsdown

and Penny knew that the stolen ring was on

the premises, the court held that seizure

of the ring violated the pawnbroker’s

rights. Id. at 853-55. The court stated:

If we were to allow an

officer under the

guise of the

administrative statute

to seize evidence of

criminal activity

without a warrant when

the officer has a

Particularized

suspicion regarding

that evidence, we

would eradicate the

Fourth Amendment

protections enjoyed by

the pawnshop.

4 F.3d at 854.

The court also held that had exigent

circumstances existed, the stolen ring

could have been seized without a search

8

warrant, but the mere fact that the owner

of the ring had announced that he was

coming to get the ring was not sufficient

to justify the seizure without a warrant.

Id. at 854 n.7.

The Petitioner also claimed that the

mandatory disciosure of information by

pawnbrokers, which is required by Okla.

Stat. tit. 12, § 1515(A), violated the

Equal Protection Clause of the Fourteenth

Amendment. This was rejected by the Tenth

Circuit, which held that there was a

rational basis for the distinction between

the laws governing pawnshops and other

financial institutions. Id. at 852-53.

Winters filed a petition for

rehearing, which was denied on October 5,

1993.

Winters filed the present Petition for

a Writ of Certiorari on December 8, 1993,

but the clerk required that a corrected

Petition be filed. This was done, and the

9

Respondent received it on January 27, 1994.

The Respondents Landsdown and Penny

are filing, pursuant to S. Ct. R. 12.3, a

Cross-—Petition to this Petition.

REASON THE PETITION SH D_ BE DENIED

THE PORTION OF THE OKLAHOMA PAWNBROKER

ACT, OKLA. STAT. TIT. 12, § 1515(A), WHICH

REQUIRES PAWNBROKERS TO PROVIDE TO LOCAL

LAW ENFORCEMENT AGENCIES INFORMATION

CONCERNING THE PAWN TRANSACTION DOES NOT

VIOLATE THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT, DESPITE THE FACT

THAT BANKS ARE PROHIBITED FROM DISCLOSURE

OF THIS INFORMATION BY FEDERAL STATUTES.

Winters contends that the reporting

provisions of the Oklahoma Pawnshop Act,

Okla. Stat. tit. 59, § 1515(A), which

requires a pawnbroker to provide local law

enforcement agencies with certain

information about sellers of property to

her within three days of any transaction,

are violative of the Equal Protection

Clause of the Fourteenth Amendment.

Winters contends that because a pawnshop is

not within the definition of a financial

institution, and that the mandatory

10

disclosures of pawnshop transactions of

customers are therefore required by Okla.

Stat. tit. 59, § 1515(A) this violates the

rights of the pawnshops and their customers

under the Equal Protection Clause.

It is argued that this constitutional

violation occurs because the pawn customers

are not protected by the provisions of

either 5 U.S.C. § 552a or 12 U.S.C. §§

3401-3422, regarding the disclosure of

financial information. More specifically,

Winters seems to be alleging that Okla.

Stat. tit. 59, § 1515 requires her, as a

pawnbroker, to divulge financial

information about her customers which she

is forbidden to disclose pursuant to either

5 U.S.C. § 552a or 12 U.S.C. §§ 3401-3422.

Title 5 U.S.C. § 552a governs the

responsibilities of federal agencies in the

disclosure of, access to, and content of

government records concerning individuals.

See Thomas v. United States Department of

11

Energy, 719 F.2d 342, 345-46 (10th Cir.

1983) ("Congress passed the Act ‘to protect

the privacy of individuals identified in

information systems maintained by Federal

agencies’...." (citing congressional]

findings and statement of purpose quoted in

1974 U.S. Code Cong. & Ad. News 2177-78));

Miller v. United States, 630 F. Supp. 347,

348 (E.D. N.Y. 1986) ("The purpose of this

act is to give individuals greater control

over the gathering, dissemination, and

accuracy of agency information about

themselves); and Ely v. Department of

Justice, 610 F. Supp. 942, 945 (= eee & Se

1985) ("The Privacy Act of 1974 serves to

safeguard the public interest in

informational privacy by delineating the

duties and responsibilities of federal

agencies that collect, store and

disseminate personal information about many

individuals.").

12

In the present case, the Tenth Circuit

correctly noted that 5 U.S.C. § 552a(b)

states that this Act applies only to

information originating from federal

agencies. Win Boar n

.

mmissioners, 4 F.3d 848, 852 (10th Cir.

1993).

The Right to Financial Privacy Act, 12

U.S.C. §§ 3401-3422, seeks to protect the

customers of financial institutions from

unwarranted intrusion into their records by

agencies of the federal government. See in

re Grand Jury Proceedings, 636 F.2d 81, 84

(5th Cir. 1981). But the definitions

portion of the Act, 12 U.S.C. § 3401(1),

reveals that pawnbrokers are not covered by

a6; According to 12 U.S.C. § 3401(1), a

financial institution means a bank, savings

bank, industrial loan company, trust

company, savings association, building and

loan or homestead association, credit union

or consumer finance institution located in

13

the United States. This provision does not

mention pawnbrokers.

Given the foregoing, it is clear that

neither 5 U.S.C. § 552a, nor the Right to

Financial Privacy Act, 12 U.S.C. §§ 3401-

3422, are applicable to the disclosure of

information by pawnbrokers. Pawnbrokers

are not financial institutions within the

meaning of this Act, but even if they were,

the Act only bars disclosures to federal

agencies not disclosures to local law

enforcement authorities pursuant to state

law.

That the Oklahoma statute, Okla. Stat.

tit. 59, § 1515(A), requires disclosure of

information that would be prohibited from

disclosure if the two federal statutes

above-mentioned applied to pawnbrokers,

does not mean that the Equal Protection

Clause Protection Clause of the Fourteenth

Amendment has been violated. See Gregory

v. Ashcroft, 0.3. ke eee

14

2406 (1991) (mandatory retirement for state

court judges does not violate equal

protection); and Vance v. Bradley, 440 U.S.

93, 97 (1979) (foreign service retirement

system does not violate equal protection).

In Winters, 4 F.3d at 853, the Tenth

Circuit noted that equal protection

analysis by federal court grants

considerable latitude to the states to deal

with practical problems of local

government, and there is no constitutional

infirmity merely because the classification

is not made with mathematical nicety. See

also Danbridge v. Williams, 397 U.S. 471,

485 (1970) (maximum grant regulation with

regard to total amount a family unit could

receive did not violate Equal Protection

Clause).

In the present case, the Tenth Circuit

noted that there was a rational basis for

the distinction between the activity of

banks and pawnshops, stating that "the

15

regulation of pawnshops is 4 substantial

government interest as they provide for a

market for stolen property.’ Winters, 4

F.3d at 853. Surely this is the case,

particularly since this Court has

recognized that a junkyard is a closely

regulated industry for the purposes of

warrantless administrative searches. See

New York v. Burger, 482 U.S. 691 (1987).

Therefore, it is clear that there is a

rational basis for requiring that pawnshops

disclose information concerning financial

transactions with their customers, but not

banks. See City of Dallas v. Stanglin, 490

U.S. 19, 25-28 (1989) (ordinance

restricting admission to certain dance

halls to persons between the ages of

fourteen and eighteen had a rational basis,

and did not violate the Equal Protection

Clause).

16

CONCLUSION

For the reasons stated, the

Respondents respectfully request that the

Court deny the Petitioner’s Petition for a

Writ of Certiorari. If certiorari is

granted, the Respondents Landsdown and

Penny request that their Cross-Petition

also be granted.

Respectfully submitted,

David W. Lee

LEE, COLLINS & FIELDS, P.C,

818 N.W. 63rd Street

Suite 100

Oklahoma City, OK 73116

(405) 848-1983

ATTORNEY FOR RESPONDENTS AND

CROSS-—PETITIONERS