Appendix — Perez. v. Campbell

Supreme Cot of the United States

OCTOBER TERM, 1970

2a

No. 5175

ADOLFO PEREZ, ET UX.,

Petitioners,

—vV =

DaviD H. CAMPBELL, SUPERINTENDENT, MOTOR VEHICLE

pon, ARIZONA HIGHWAY DEPARTMENT, ET AL.

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

. Relevant Docket Entries ____

{

Plaintiffs’ Complaint 2

> Plaintiffs’ Motion for Preliminary Injunction 9

© Affidavit of Plaintiff Emma Perez in tnaenidh of Plaintiffs’

Motion for preliminary injunction : 10

g Affidavit of Plaintiff Adolfo Perez in support of Plaintiffs’

Motion for Preliminary Injunction ____ 12

- Order granting Plaintiffs’ Motion to proceed in forma

pauperis Rech Noe nee

INDEX

Defendants’ Motion to Dismiss

Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

Order granting Defendants’ Motion to Dismiss _......._.____

Notice of Appeal to the United States Court of Appeals for

the Ninth Circuit

Opinion of the United States Court of Appeals for the Ninth

Circuit. Kilkenny, J.

Judgment

Order denying petition for rehearing

Order granting motion for leave to proceed in forma pauperis

and granting petition for writ of certiorari

RELEVANT DOCKET ENTRIES

Plaintiffs’ Complaint was filed August 2, 1968.

Plaintiffs’ Motion for Preliminary Injunction together

with supporting affidavits were filed August 2, 1968.

Defendants’ Motion to dismiss was filed September 11,

1968.

Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

was filed September 20, 1968.

The District Court’s Order granting Defendants’ Motion

to Dismiss was filed September 26, 1968.

Plaintiffs’ Notice of Appeal to the United States Court

of Appeals for the Ninth Circuit was filed October 14,

1968.

United States Court of Appeals for the Ninth Circuit’s

Opinion was dated and filed January 26, 1970.

Motion for Re-hearing in the United States Court of Ap-

peals for the Ninth Circuit was filed February 9, 1970.

Denial of Motion for Re-hearing by the United States

Court of Appeals for the Ninth Circuit was filed on

February 18, 1970.

Notice of Appeal to the United States Supreme Court was

filed April 15, 1970.

Petition for writ of certiorari and motion to proceed in

forma pauperis was filed in this Court on April 27,

1970.

This Court’s Order granting certiorari and motion to pro-

ceed in forma pauperis was dated and filed October 12,

1970.

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Civ-2478 Tuc.

[File Endorsement Omitted]

ADOLFO PEREZ and EMMA PEREZ, husband and wife, and

EMMA PEREz for her separate self, PLAINTIFFS

v8.

Davip H. CAMPBELL, SUPERINTENDENT, MOTOR VEHICLE

DIVISION, ARIZONA HIGHWAY DEPARTMENT, STATE OF

ARIZONA and D. H. HASTINGS, SUPERVISOR, FINANCIAL

RESPONSIBILITY SECTION, MOTOR VEHICLE DIVISION,

ARIZONA HIGHWAY DEPARTMENT, STATE OF ARIZONA,

DEFENDANTS

— COMPLAINT—Filed August 2, 1968

I

This is an action for injunctive and declaratory relief

sought by plaintiffs to secure rights, privileges and im-

munities established by the Thirteenth and the Fourteenth

Amendments to the Constitution, as well as an action for

declaratory relief on the basis that the State statute in

question violates Art. VI, cl. 2 as well as Art. I, Sec. 10 of

the United States Constitution.

II

That this Court has jurisdiction by virtue of Title 28,

U.S.C., Section 1834 and 11 U.S.C., Section 11, as well as

Title 28, U.S.C., Section 1343, together with the provisions

of Title 42, subchapter I, U.S.C., particularly Section

1983 of Title 28 for the redress of the deprivation by de-

fendants, the due process of law and the equal protection

of laws guaranteed to the plaintiffs by the Fourteenth

Amendment of the United States Constitution. Declaratory

relief is sought herein under Title 28, U.S.C., Sections

8

2201 and 2202 and a temporary and permanent injun

tion against the defendants under Title 28, U.S.C., Sec-

tions 2281 and 2284 and a three-judge Federal Courts is

requested. Injunctive power is also conferred upon the

Court by virtue of 28 U.S.C. 1651.

Ill

That plaintiffs, husband and wife, are residents of this

judicial district. That they are citizens of the United

States and citizens of the State of Arizona.

IV

That defendant, DAVID H. CAMPBELL, is the Super-

intendent of the Motor Vehicle Division of the Arizona

Highway Department, State of Arizona, and that defend-

ant, D. H. HASTINGS, is the Supervisor of the Financial

Responsibility Section of the Motor Vehicle Division,

Arizona Highway Department, State of Arizona.

Vv

That on July 8, 1965, in the City of Tucson, Arizona,

plaintiff ADOLFO PEREZ, alone, while driving his auto-

mobile, collided with another automobile owned by a

Leonard Pinkerton and operated by Janice Pinkerton, a

minor.

VI

That on the 6th day of September, 1966, a complaint

was filed in the Superior Court of the State of Arizona,

in and for the County of Pima, Case No. 97569, by the

Pinkertons against the plaintiffs, as husband and wife.

VII

That on October 31, 1967, plaintiffs confessed judgment

“to the Pinkertons and an order accepting the confession

of judgment and judgment against the plaintiffs in the

amount of $2,425.98, plus court costs in the amount of

$25.90, was duly entered on November 8, 1967.

Vill

That on November 6, 1967, plaintiffs, husband and wife,

each filed a Petition in Bankruptcy in this Court and that

each of the plaintiffs was adjudicated a bankrupt in Case

Nos. B-7925-Tuc. and B-7926-Tuc.

IX

That on July 8, 1968, an order was entered as to each

of the plaintiffs, discharging each of them from all debts

and claims that were provable by the Bankruptcy Act

against the estates of each of the plaintiffs.

xX

That the debt and judgment owed to the Pinkertons

was duly scheduled in the schedules of each of the plain-

tiffs, with the creditor’s address.

XI

That on March 18, 1968, the plaintiffs were served with

notice by the defendants that pursuant to Arizona Revised

Statutes, Section 28-1162 A, which provides that:

“The superintendent upon receipt of a certified copy

of a judgment, shall forthwith suspend the license

and registration and nonresident operating privilege

of a person against whom the judgment was rendered,

except as otherwise provided in this section and sec.

tion 28-1165.”

That on June 10, 1968, each of the plaintiffs turned in the

driver’s license to the defendants.

XII

That despite the adjudication and discharge in bank-

ruptcy of each of the plaintiffs, Arizona Revised Statutes,

Section 28-1163 B provides that:

“B. A discharge in bankruptcy following the render-

ing of any’ such judgment shall not relieve the judg-

5

ment debtor from any of the requirements of this

article.”

XIII

That A.R.S. Section 28-1163 B is in direct conflict with

the Bankruptcy Act and is in violation of the Supremacy

clause, Article VI, cl. 2 of the United States Constitution.

XIV

That Arizona Revised Statutes, Section 28-1162 further

provides in part B that:

“B. If the judgment creditor consents in writing, in

such form as the superintendent may prescribe, that

the judgment debtor be allowed license and registra-

tion or nonresident operating privilege, and the same

may be allowed by the superintendent in his discre-

tion, for six months from the date of the consent and

thereafter until the consent is revoked in writing,

notwithstanding default in the payment of the judg-

ment, or of any installments thereof prescribed in

Sec. 28-1165, provided the judgment debtor furnishes

proof of financial responsibility.”

XV

That A.R.S. 28-1162 B is in direct conflict with the

Bankruptcy Act and is in violation of the Supremacy

clause, Article VI, cl. 2 of the United States Constitution

by giving the judgment creditor the sole discretion of de-

termining if and when the driving licenses may be re-

stored to each of the plaintiffs,

XVI

That A.R.S. 28-1163 B violates the Thirteenth Amend-

ment of the United States Constitution for the reason that

it enslaves and forces each of the plaintiffs to remain

in perpetual involuntary servitude until the judgment is

paid or else the right to drive on the public highways as

well as the right to register a motor vehicle in Arizona

would be perpetually denied to each of the plaintiffs,

XVII

That each of the plaintiffs is financially unable to pay

money to satisfy the judgment in any manner whatsoever,

That as a result of their poverty, they are now perpetually

denied their right to drive on the public highways and in

registering any automobile. That A.R.S. Section 28-1162,

singly, and in conjunction with Section 28-1163 B, in deny-

ing them this right is an invidious discrimination and

violates the equal protection of laws as guaranteed under

the Fourteenth Amendment of the United States Con-

stitution.

XVIII

That in forfeiting perpetually each of the plaintiffs’

right to drive on. public highways and in registering any

motor vehicle until payment of judgment, A.R.S. 28-1162,

singly, and in conjunction with A.R.S. 28-1163 B, op-

erates as a Bill of Attainder prohibited by Article I, Sec-

tion 10 of the United States Constitution as well as a

denial of due process of law under the Fourteenth Amend-

ment of the United States Constitution.

XIX

That as to plaintiff, EMMA PEREZ, A.R.S. 28-1162,

singly, and together with A.R.S. 28-1163 B, in suspending

her right to drive and in prohibiting her from registering

any motor vehicle, deprives her of the due process and

equal protection laws as guaranteed to her by the Four-

teenth Amendment for the reason that she was not at

any material times negligent in the operation of an auto-

mobile which has resulted in the judgment. That her part

in the judgment was solely that of the wife of the negli-

gent driver, plaintiff, ADOLFO PEREZ.

XX

That as to the plaintiff, EMMA PEREZ, A.R.S. 28

1162, singly, and in conjunction with A.R.S. 28-1163 B,

in forfeiting perpetually her right to drive and to register

a motor vehicle, is a Bill of Attainder as forbidden by

Article I, Section 10 of the United States Constitution.

XXI

That each of the plaintiffs is now suffering daily irre-

parable injury and harm as a result of the actions of the

defendants, and that plaintiffs have no other plain, speedy

and adequate remedy at law from this injury and harm

other than invoking equity in obtaining temporary and

permanent injunction against the defendants.

WHEREFORE, plaintiffs pray as follows:

1, That this Court assume jurisdiction and convene a

three-judge Court pursuant to Title 28, U.S.C., Sections

2281 and 2284.

2. That this Court set a date for hearing on plaintiffs’

motion for preliminary injunction pursuant to Title 28,

US.C., 2284, ordering the defendants to show cause, if

any they have, why the drivers’ licenses and right to reg-

ister a motor vehicle should not be restored to the plain-

tiffs, husband and wife, and to plaintiff, EMMA PEREZ,

as her separate self, pendente lite.

8. That this Court enter a declaratory judgment pur-

suant to Title 28, U.S.C., Sections 2201 and 2202 and Rule

57 of the Federal Rules of Civil Procedure, declaring that

Arizona Revised Statutes, Section 28-1162, singly, and

together with Section 28-1168 B, violates the rights, the

due process of law and the equal protection of laws as to

the plaintiffs and plaintiff, EMMA PEREZ, secured by

the Fourteenth Amendment to the Constitution of the

United States; that they constitute slavery and involun-

tary servitude in violation of the Thirteenth Amendment

of the Constitution of the United States, as well as being

violative of Article 1, Section 10 of the United States Con-

stitution as a Bill of Attainder. That A.R.S. 28-1163 B

be also declared as violative of the Supremacy clause,

Article VI, cl. 2 of the United States Constitution,

4. That a permanent injunction be entered against

the defendants, their Successors to office, agents and em-

Ployees to restore the driving licenses of the plaintiffs

and plaintiff, EMMA PEREZ, and also the right of the

plaintiffs and plaintiff, EMMA PEREZ, to register a

motor vehicle in the State of Arizona.

5. That this Court grant the plaintiffs and plaintiff,

EMMA PEREZ, any other and further relief as this

Court may deem to be just and proper.

/s8/ Adolfo Perez

/s/ Emma Perez

LEGAL AID SOCIETY OF THE PIMA COUNTY BAR

ASSOCIATION

By: /s/ Anthony B. Ching

ANTHONY B. CHING

Chief Trial Counsel

112 West Pennington Street

Tucson, Arizona 85701

Attorneys for Plaintiffs

[Duly sworn to by Adolfo Perez and Emma Perez, jurats

omitted in printing]

9

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Civ-2478 Tuc.

[Title Omitted]

MOTION FoR PRELIMINARY INJUNCTION—Filed August 2,

968

The plaintiffs and the plaintiff, EMMA PEREZ, for

her separate self, move this Court for a preliminary in-

junction commanding the defendants, their agents, suc-

cessors and employees, pending the final determination of

this action, to restore and reinstate to the plaintiffs and

to plaintiff, EMMA PEREZ, their drivers’ licenses and the

right to register a motor vehicle in the State of Arizona.

The grounds of this Motion, more fully set forth in the

verified Complaint and the attached affidavit of plaintiffs,

ADOLFO PEREZ and EMMA PEREZ, are that:

Z, as more particu

fidavit attached hereto.

(c) The issuance of a preliminary injunction herein

will not cause undue inconvenience or loss to the defend-

ants or the public, but will prevent irreparabile injury to

the plaintiffs.

Respectfully submitted,

LEGAL AID SOCIETY OF THE

PIMA COUNTY BAR ASSOCIA-

TION

By: /s/ Anthony B. Ching

Chief Trial Counsel

112 West Pennington Street

Tucson, Arizona 85701

Attorneys for Plaintiffs

10

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

3 Ree

[Title Omitted]

AFFIDAVIT OF PLAINTIFF EMMA PEREZ IN SUPPORT OF

PLAINTIFFS’ MOTION FoR PRELIMINARY INJUNCTION

STATE OF ARIZONA )

ss.

COUNTY OF PIMA _)

EMMA PEREZ, being first duly sworn upon her oath,

deposes and says:

1. That she is the wife of plaintiff ADOLFO PEREZ

and the mother of HECTOR PEREZ, age 17; GILBERT

PEREZ, age 14; LAURA PEREZ, age 9, and DANIEL

PEREZ, age 6.

2. That she is not gainfully employed other than as a

housewife; that since the suspension of her driver’s license

and automobile registration the following has occurred.

8. That the two older children attended Pueblo High

School, one and one-half miles from her home; that they

had to walk to and from school due to her inability to drive

them to school. That LAURA PEREZ attended Van Bus-

kirk School, one mile from home; that LAURA’s trans-

portation to and from school is furnished by friends and

relatives, and that at times she had to walk the distance,

which caused her to have nose bleeding. That LAURA

has suffered from nose bleeding for some four years and

the walking in the summer heat had aggravated her

condition.

4. That in shopping for the family she usually walks

to the stores and at times she has to take a bus. That this

often results in her being unable to purchase in large

quantities and also to go to purchase supplies at the many

discourt stores remote from her home. That in going to

the doctors for her children she has to rely either on rela-

11

tives or the public transportation and at times she must

walk with the children. That she must

most of the other times when she must

for herself and her family.

5. That said suspension has caused affiant great harm

and inconvenience and that she is suffering irreparable

injury.

/s/ Emma L. Perez

EMMA PEREz

SUBSCRIBED AND SWORN TO before me this 2nd

day of August, 1968, N

/s/ Nina Ames

Notary Public

My Commission expires: June 20, 1971

12

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

[Title Omitted}

AFFIDAVIT OF PLAINTIFF ADOLOFO PEREZ IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION

STATE OF ARIZONA )

Ss.

COUNTY OF PIMA )

ADOLFO PEREZ, being first duly sworn upon his

oath, deposes and says: 1. That he is the husband of

plaintiff EMMA PEREZ, and the father of HECTOR

PEREZ, age 17; GILBERT PEREZ, age 14, LAURA

PEREZ, age 9, and DANIEL PEREZ, age 6.

2. That affiant is employed by Krueger Manufacturing

Company in Tucson, Arizona; that his place of work is

approximately seven (7) miles from his home; that since

the suspension of his driver’s license and automobile reg-

istration he has relied on transportation furnished by his

friends and neighbors, and at times he has to rely on

public transportation and walking.

3. That in other cases when he needs transportation

he has to rely on relatives and friends whenever an occa-

sion arises.

4. That said suspension has caused affiant great harm

and inconvenience and that he is suffering irreparable

injury.

/s/ Adolfo Perez

ADOLFO PEREZ

SUBSCRIBED AND SWORN TO BEFORE ME this

2nd day of August, 1968.

/s/ Nina Ames

Notary Public

My commission expires: June 20, 1971

13

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Civ-2478 Tuc.

[Title Omitted]

ORDER GRANTING PLAINTIFFS’ MOTION T° PROCEED IN

FORMA PAUPERIS—Filed August 2, 1938

UPON READING the verified Complaint herein, the

Motion to Proceed in Forma Pauperis and the Affidavit

of plaintiffs in support of plaintiffs’ Request to Proceed

in Forma Pauperis; and good cause appearing:

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED:

That plaintiffs’ Motion to Proceed in Forma Pauperis

be granted pursuant to 28 U.S.C. 1915. ;

DONE IN OPEN COURT this 2nd day of August,

1968,

/s/ James A. Walsh

JAMES A. WALSH

JUDGE OF THE DISTRICT COURT

14

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

No. Civ-2478-TUC

[Title Omitted]

DEFENDANTS’ MOTION To Dismiss—Filed September 11,

1968

(Oral Argument Requested)

Comes now defendants, David H. Campbell, Superin-

tendent, Motor Vehicle Division, Arizona Highway De-

partment, State of Arizona and D. J. Hastings, Super-

visor, Financial Responsibility Section, Motor Vehicle

Division, Arizona Highway Department, State of Arizona,

by and through the Attorney General, Gary K. Nelson,

and Robert H. Schlosser, Assistant Attorney General, and

moves that this court dismiss this action because the al-

legations as plead fail to comply with Federal Rules of

Civil Procedure, Rule 12(b)1 and Rule 12(b)6 as follows:

1. That a court convened pursuant to 28 U.S.C. 2281

et seq. does not have jurisdiction of this action.

2. That plaintiffs’ complaint should be dismissed for it

fails to state a claim upon which relief can be granted.

Respectfully submitted, this 10th day of September

1968.

GaRY K. NELSON

The Attorney General

/s/ Robert H. Schlosser

ROBERT H. SCHLOSSER

Assistant Attorney General

15

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

No. Civ-2478-TUC

[Title Omitted]

PLAINTIFFS’ OPPOSITION To DEFENDANTS’ MOTION To

DIsMiss—Filed September 20, 1968

Plaintiffs oppose defendants’ motion to dismiss for the

following reasons:

1. That this case is a proper case for a three-judge

Federal Court.

2. That there are other substantial federal constitu-

tional questions besides the supremacy clauses,

3. That as to the plaintiff Emma Perez the supremacy

clause is not the main thrust of plaintiffs’ complaint that

plaintiff Emma Perez without being at fault suffers a

deprivation of her rights without any meaningful con-

stitutional protections,

4. That the complaint states a cause of action.

LEGAL AID SOCIETY

By: /s/ Anthony B. Ching

112 West Pennington Street

Tucson, Arizona 85701

Attorneys for the Plaintiffs

Copy mailed this 20th day of September, 1968, to:

Robert H. Schlosser

Assistant Attorney General

State Capitol

Phoenix, Arizona

16

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA '

No. Civ-2478 Tucson

[Title Omitted ]

ORDER—September 26, 1968

The Court rules that plaintiffs’ claims as to the uncon-

stitutionality of the Arizona statutes involved in this ac-

tion are obviously insubstantial and, accordingly, the ap-

plication that the Court request the appointment of a

three-judge court is denied.

IT IS ORDERED granting the motion of defendants

to dismiss plaintiffs’ complaint for failure to state a claim

upon which relief can be granted, and the complaint is

dismissed.

Kesler v. Department of Public Safety (1962), 869 U.S.

153, 82 S.Ct. 807, 7 L.ed 2d 641; Reitz v. Mealey (1941),

314 U.S. 33, 62 S.Ct. 24, 86 L.ed 21; Escobedo v. State

Department of Motor Vehicles (Cal. 1950), 222 P.2d &

6; Sheehan v. Division of Motor Vehicles (Cal. 1984), 35

P.2d 359, 361; Rosenblum v. Griffin (N.H., 1938), 197

A. 701, 704; Berberian v. Lussier (R.I. 1958), 189 A.2d

869, 873; State v. Finley (Kan. 1967), 426 P.2d 256, 265;

385 ALR 2d 1011, et seg.

DATED: September 26, 1968.

/s/ James A. Walsh

United States District Judge

17

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

CIVIL ACTION NO. Civ.-2478 Tucson

ADOLFO PEREZ and EMMA PEREZ, husband and wife, and

EMMA PEREz for her Separate self, PLAINTIFFS

v8.

DAVID H. CAMPBELL, SUPERINTENDENT, MOTOR VEHICLE

DIVISION, ARIZONA HIGHWAY DEPARTMENT, STATE OF

ARIZONA and D. H. HASTINGS, SUPERVISOR, FINANCIAL

RESPONSIBILITY SECTION, Motor VEHICLE DIVISION,

ARIZONA HIGHWAY DEPARTMENT, STATE oF ARIZONA,

DEFENDANTS

NOTICE OF APPEAL—Filed October 16, 1968

NOTICE IS HEREBY GIVEN that ADOLFO PEREZ

and EMMA PEREZ, plaintiffs above named, hereby ap-

Walsh presiding, denying plaintiff’s request to convene a

three judge court and dismissing plaintiff’s complaint for

failure to state a claim upon which relief can be granted

entered in this action of the 26th day of September, 1968.

DATED this 14th day of October, 1968,

/s/ Anthony B. Ching

Chief Trial Counsel

Legal Aid Society

112 West Pennington Street

Tucson, Arizona 85701

/s/ Winton D. Woods, Jr.

Legal Aid Society

112 West Pennington Street

Tucson, Arizona 85701

——

18

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No, 23,463

ADOLFO PEREZ and EMMA PEREZ, husband and wife, and

EMMA PEREZ for her separate self, APPELLANTS

v8.

Davip H. CAMPBELL, Superintendent, Motor Vehicle

Division, Arizona Highway Dept., etc., ET AL., APPELLEES

Appeal from the United States District Court for the

District of Arizona

OPINION—January 26, 1970

BEFORE: CHAMBERS, CARTER and KILKENNY,

Circuit Judges.

KILKENNY, Circuit Judge:

In the District Court, the appellants challenged the con-

stitutionality of certain Arizona statutes, sought to con-

vene a three-judge court’ and attempted to secure a pre-

liminary injunction against appellees. The District Court

concluded that the unconstitutional claims were obviously

insubstantial and that the appellants’ complaint failed to

state a claim upon which relief could be granted. It

denied the request for a three-judge court and dismissed

complaint. We AFFIRM.

On July 8, 1965, Adolfo Perez was involved in an acci-

dent in his home state of Arizona. At the time, he was

driving alone in an automobile registered in his name, but

owned by the community Adolfo Perez and Emma Perez,

husband and wife, the appellants. Later, in the Arizona

Court, the occupants of the other automobile instituted an

128 U.S.C. § 2281.

19

action against appellants for damages sustained in the ac-

cident. Appellants appeared in that action and confessed

judgment for approximately $2,450.00. Adolfo’s driver’s

license, and his automobile registration, were thereafter

suspended by reason of his failure to carry the liability

insurance required under the provisions of ARS § 28.1142.

Subsequently, the appellants filed separate petitions in

bankruptcy and each was adjudicated a bankrupt. The

confessed judgment was scheduled by each of the bank-

rupts. Appellants were thereafter duly discharged.

Af a later date, the appellants were served with a notice

by the Arizona Highway Department that their drivers’

licenses, as well as motor vehicle registration, had been

suspended pursuant to the provisions of ARS § 28.1162

(A). ARS § 28.1163(B) provides, among other things,

that a discharge in bankruptcy does not relieve a judg-

ment debtor from the effect of ARS § 28.1162 (A). Appel-

lants allege that the suspension of their drivers’ licenses

and motor vehicle registration has caused them, and their

family, a great hardship. ARS § 28.1165 permits the pay-

ment of this type of judgment in installments and, as long

as payments thereunder are not in default, the drivers’

licenses and motor vehicle registration of the judgment

debtors may be returned and retained by them. Appellants

have attempted to make an arrangement between the

parties for payment of the judgment in installments, but

no agreement has thus far been reached.

APPELLANTS’ CONTENTIONS

Appellants’ contentions, briefly stated, are as follows:

(1) That, as applied to appellants, ARS § 28-1163 (B)

is in conflict with Section 17 of the Bankruptcy Act, 11

U.S.C. § 35, and thus violates the supremacy clause of the

United States Constitution.

* ARS § 28.1162(A):

“The superintendent upon receipt of a certified copy of a

judgment, shall forthwith Suspend the license and registration

and nonresident operating privilege of a person against whom

the judgment was rendered, except as otherwise provided in

this section and § 28-1165,” ?

a

20

(2) That ARS § 28-1162(A), separately, and when

read in connection with ARS § 28-1163(B), violates the

due process and equal protection clauses of the Constitu-

tion, as imposed on the states by the Fourteenth Amend-

ment.

(3) That the challenged statutes violate the Thirteenth

Amendment to the Constitution, which prohibits involun-

tary servitude.

(4) That the challenged statutes constitute a bill of

attainder prohibited by Article I, Section Ten of the

United States Constitution.

The first issue has been decided against appellants in

Kesler v. Dept. of Public Safety, 369 U.S. 153 (1962)

and Reitz v. Mealey, 314 U.S. 33 (1941). Appellants ask

us to re-examine these cases. Aside from our duty to fol-

low Supreme Court decisions, we believe that the cases

are sound.

In our view, all contentions of appellant, Adolfo Perez,

have been answered against him by Kesler v. Dept. of

Public Safety, supra, and Reitz v. Mealey, supra. The dif-

ferences between the Utah statute involved in Kesler and

the New York statute under scrutiny in Reitz and the

challenged Arizona statute are so slight that we view them

as de minimus non curat lex. For that matter, the re-

quirements of the Arizona statutes are considerably less

open to question than those under challenge in Kesler

and Reitz. Inherent in the Supreme Court disposition of

both Kesler and Reitz are rulings adverse to the equal

protection, due process and other constitutional arguments

of appellant, Adolfo Perez.

Aside from the decisions in Kesler and Reitz, a number

of responsible courts have spoken on the subject and have

held that financial responsibility laws, such as the one here

in question, are not violative of the equal protection clause

of the Fourteenth Amendment. The bellwether of this

group dealing with the legislation before us in Schecter v.

Killingsworth, 98 Ariz. 278, 380 P.2d 136 (1963), Schec-

ter, in overruling Goodwin v. Superior Court, 68 Ariz.

108, 201 P.2d 124 (1948), holding that license to operate

a motor vehicle was a mere privilege, and not a property

right, went on to hold that the provisions of the Arizona

Financial Responsibility Act requiring the posting of

21

security did not constitute deprivation of equal protection

of the law in its application only to uninsured drivers who

had been so unfortunate as to have been in an accident,

Financial responsibility laws, such as the Arizona

statutes before us, do not unconstitutionally discriminate

against the poor. Moreover, Schecter teaches that the pro-

visions of the Arizona legislation, designed to provide se-

curity against uncompensated damages, is not violative

of substantive due process. Although Kesler is not cited in

Schecter, the logic there employed follows the same gen-

eral pattern. No one questions that one of the principal

purposes of financial responsibility acts is the protection

of the public using the highways from financial hardship

which might result by the negligent use of automobiles by

financially irresponsible persons. That object is accom-

plished by requiring proof of financial responsibility by

those involved in an accident either by the showing of in-

surance which covers the accident or requiring a bond or

a deposit of cash or other securities. Incident to one of its

principal purposes, by reason of threat of loss of driving

rights following an uninsured accident, the legislation

tends to encourage operators of motor vehicles to obtain

liability insurance and to invite drivers to drive more

carefully. The latter, however, are not the primary objec-

tives of this legislation. The Arizona Court correctly re-

jected the constitutional challenges of lack of due process

and equal protection of the laws. The fact that a person

may be poor and unable to furnish financial security or

pay a judgment growing out of his conduct on the high-

ways does not guarantee that person a right to drive.

Here, we should mention, as was emphasized in Kesler,

the fact that the Arizona legislation permits the judgment

debtors to pay the judgments in installments. While we

are not governed by state decisions interpreting the

United States Constitution, there is no rule against fol-

lowing those decisions when they are patterned after those

in the Federal Courts.

APPEAL OF EMMA PEREZ

Mrs. Perez argues that the automobile was registered in

her husband’s name, he was the negligent driver and, al-

—q

22

though the automobile was community property ® and she,

as a member of the community, confessed judgment that,

nevertheless, the decisive logic of Kesler and Reitz should

be confined to the driver of the automobile, such as her

husband. She reasons that the rules stated in those cases

should not be applied to an innocent wife who had no

connection whatsoever with the conduct which was re

sponsible for confession and entry of the judgment. There

is a distinction. But it is a distinction without a significant

difference. When she confessed judgment with her hus-

band, she conceded her financial responsibility for the

amount of the judgment. Under Arizona law, she had no

alternative. Donato v. Fishburn, 90 Ariz. 210, 367 P.2d

245 (1961).

Starting with the fundamental permises that ownership

of the vehicle was in the community of husband and wife

and that Mrs. Perez’ ownership was equal to her husband’s

subject to her husband’s right to administer the property,

Mortensen v. Knight, 81 Ariz. 825, 305 P.2d 468 (1956),

we now explore Mrs. Perez’ principal contention. She says

she had nothing to do with the negligent driving of her

husband. On the record before us that fact must be con-

ceded. Moreover, she argues that her confession of judg-

ment affects only her interest in the automobile and other

community property. This status, she argues, should not

lead to a forfeiture of her driver’s license. In arriving at

a proper result, we must take judicial notice of the fact

that large numbers of the motor vehicles driven on the

Arizona highways are community property. The husband

or the wife, if each so desired, could purchase an auto-

mobile with separate funds and in such case the automo-

bile would be the separate property of the purchaser. The

negligent operation of such an automobile on separate

business would not call into question the liability of the

other spouse, nor the cancellation of the latter’s license.

The judgment entered in such a case would be against the

spouse operating the vehicle or someone operating it with

his authority.

It seems to us that Mrs. Perez’ legal status, on the facts

before us, is closely analogous to that of an automobile

* ARS § 25-211.

owner who permits another to drive it. If the driver is

negligent, judgment is entered against both the driver and

the owner, or the owner alone. The financial responsibility

laws have been uniformly applied against the owner under

these circumstances. The parent case on this line of au-

thority seems to be Jn re Opinion of the Justices, 251

Mass. 569, 147 N.E. 681 (1925), where the Supreme

Judicial Court of Massachusetts explored the problem un-

der that state’s compulsory motor vehicle insurance act.

It was there held that the extension of liability of the

owner of a motor vehicle so as to include personal injuries

caused bv it, while being negligently operated with the

owner’s express or implied consent, even though not by

himself, his servant or agent, violate no constitutional re-

quirement. The Court held that such an extension of lia-

bility and the requirements for security by the owner of a

motor vehicle for compensation of personal injuries caused

by it, do not differ in principle from the civil liability act

affording remedies to those injured by an intoxicated per-

son against the person who caused such intoxication in

whole or in part by sale or gift of intoxicating liquor. The

Court then goes on to say that the general principle which

sustains this type of legislation is that, when the general

welfare of travelers on the highway, in the opinion of the

legislature, is threatened by and demands protection

against a specific evil, any rational means may be em-

ployed to remedy that evil.

The logic of the Massachusetts court was used to reach

the same conclusion in Watson v. State Division of Motor

Vehicles, 212 Cal. 279, 298 Pac. 481 (1981). The Arizona

Supreme Court also employed the Massachusetts decision

in reaching its conclusion in State v. Price, 49 Ariz. 19,

63 P.2d 653 (1937).

More in point is Sheehan v. Division of Motor Vehicles,

140 Cal. App. 200, 35 P.2d 359 (1934), rehearing den.

August 20, 1934, hearing den., Supreme Court, Septem-

ber 24, 1934, holding valid a statute permitting cancella-

tion of a driver’s license when the licensee was unable to

pay a judgment. There, a judgment was entered against

both husband and wife for damages suffered in a highway

accident where the husband was driving the automobile.

The judgment against here was sought and secured solely

24

on the ground that she was the owner of the automobile

in question. There, as here, the judgment debtors were

unable to satisfy the judgment in whole or in part. On

failure to satisfy the judgment, the judgment debtors’ op-

erators’ licenses and registration certificates were revoked

There is a striking similarity between the California

statute involved in that case and the one here before us.

There, as here, the question presented was whether the

wife’s license should be revoked inasmuch as the judgment

was entered against her solely by reason of her ownership

of the automobile and not by reason of any negligence on

her part in operating it. The California court answered in

the affirmative. We approve the statement in that case that

most of the reasons for revocation of a license applying

to the operator of a motor vehicle, also apply to an owner

who permits his vehicle to be operated under conditions

which make him liable to another.

The following cases, among others, invoke the same

legal principles and uphold the state’s right to revoke the

driver’s license and the car registration after judgment

has been entered against the owner and remains unsatis-

fied. Continental Cas. Co. v. Phoenix Constr. Co., 46 Cal.2d

423, 296 P.2d 801 (1956) ; State v. Price, supra; Reitz v.

Mealey, supra; Sullins v. Butler, 175 Tenn. 468, 135

S.W.2d 930 (1940); Nulter v. State Road Comm’n., 119

W.Va. 312, 198, S.E. 549, 194 S.E. 270 (1987) ; Gillaspie

v. Dept. of Public Safety, 152 Tex. 459, 259 S.W.2d 177

(1953), cert. den. 847 U.S. 933; State v. Stehlek, 262 Wis.

642, 56 N.W.2d 514 (1953); Escobedo v. State Dept. of

Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1 (1950); Annot.,

85 A.L.R.2d 1011 (1954).

Can we logically distinguish Escobedo, and other cases

of like tenor, from the case before us? Simply stated, a

valid distinction does not exist. In Escobedo, the wife was

the owner of the automobile, permitting her husband to

drive the vehicle on the California highways. Here, the

wife is the owner of her community interest in the auto-

mobile. The statutory and decisional law of Arizona make

the husband what might be termed the managing agent

of the wife in the control of the community automobile.

We might well say that the Arizona community property

25

law was written into and became part of the marriage

contract between appellants. Moreover, Mrs. Perez’

drivers’ license is not a right which is entirely separate

and distinct from the community. With married couples

in Arizona, the driver’s licenses of both husband and wife

are an integral part of the ball of wax, which is the basis

of the Arizona community property laws. Although issued

to the individuals, the licenses grant permission to drive

community vehicles where a husband and wife are con-

cerned. The fact, if it be a fact, that Mrs. Perez could

not use the community property to purchase casualty in-

surance is beside the point. Her driver’s license was issued

subject to the financial responsibility law. The loss of her

driver’s license is the price an Arizona wife must pay for

negligent driving by her husband of the community ve-

hicle, provided, that neither she, her husband, nor the com-

munity pay the damages, established by judgment, flow-

ing from the husband’s negligent acts. In these circum-

stances, the police power of the state to exercise proper

control over reckless, wrongful driving on its highways

overbalances the wife’s right to retain her license. It is

our considered judgment that the legislation in question

bears a real and a substantial relationship to public safety

on the Arizona highways. Since Mrs. Perez cannot provide

proof of that responsibility, she is no longer entitled to

drive on the highways. Of course, arrangements can still

be made to pay the judgment in installments.

Three-Judge Court

We agree with the trial judge that the claims of uncon-

stitutionality are unsubstantial, within the meaning of the

rule stated in Ex Parte Buder, 271 U.S. 461 (1926), as

analyzed and approved in Swift & Co. v. Wickham, 382

U.S. 111 (1965).

Other contentions raised by the appellants have re-

ceived our consideration.‘ We find them without substance.

AFFIRMED.

* The problems rising from a divorce of the parties or death of the

husband are not before us.

26

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 23463

ADOLFO PEREZ and EMMA PEREZ, husband and wife, and

EMMA PEREZ for her separate self, APPELLANTS

vs.

DaviD H. CAMPBELL, Superintendent, Motor Vehicle

Division, Arizona Highway Dept., etc., ET AL., APPELLEES

APPEAL from the United States District Court for the

District of Arizona.

THIS CAUSE came on to be heard on the Transcript of

the Record from the United States District Court for the

District of Arizona and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court, that the judgment of

the said District Court in this Cause be, and hereby is

affirmed.

Filed and entered Jan. 26, 1970.

27

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Excerpt from Proceedings of Wednesday, February 18th,

1970

Before: CHAMBERS, CARTER and KILKENNY,

Circuit Judges

ORDER DENYING PETITION FOR REHEARING

On consideration thereof, and by direction of the Court,

IT IS ORDERED that the petition of appellant filed Feb-

ruary 9, 1970 and within time allowed therefor by rule

of soni for a rehearing of above cause be, and hereby

is denied.

28

SUPREME COURT OF THE UNITED STATES

No. 5175, October Term, 1970

ADOLFO PEREZ ET UX., PETITIONERS

Vv.

Davip H. CAMPBELL, Superintendent, Motor Vehicle

Division

On petition for writ of Certiorari to the United States

Circuit Court of Appeal for the Ninth Circuit.

On consideration of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion to

proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted.

And it is further ordered that the duly certified copy

of the transcript of the proceedings below which accom-

panied the petition shall be treated as though filed in re-

sponse to such writ.

October 12, 1970.

W v. s. covennwent printing orrice; 1970 406933 311