Appellees Brief — Lynch v. Household Finance Corp.

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StUnARY,

~SPREME COURT, UBL

_ INTHE

Supreme Court of the Unit

No. 70-5058

"DOROTHY LYNCH, et al. _

; _ Appellants, |

7 | on

HOUSEHOLD FINANCE CORPORATION, et al.,

| _ | Appellees. -

AFFEAL FROM THE UNITED STATES ‘DISTRICT COURT FOR THE

DISTRICT OF CONNECTICUT. 3

REPLY BRIEF FOR APPELLANTS

. .

‘DAVID M. LESSER .

KENNETH R. KREILING

WILLIAM H. CLENDENEN, Jr

265 Church Street # 808

New Haven, Connecticut 06510

Telephone: 203-787-5861

ALLEN SIMs

; 611 Congress Avenue ng Be

New Haven, Connecticut - 06510 -

_ Telephone: 203-777-4405.

Attorneys for Appellants -

(i)

«isi. ° ‘TABLE OF CONTENTS

I. THIS COURT CORRECTLY NOTED PROBABLE

-_ JURISDICTION PURSUANT. TO 28 U.S.C. §1253.

: II. DEPUTY SHERIFFS, SHERIFFS AND CONSTABLES

ARE PUBLIC OFFICIALS WHO, WHEN ENGAGED

IN THE SERVICE OF PROCESS, ACT UNDER

“COLOR OF STATE LAW........ ee eae

III. THE DISTRICT COURT ERRONEOUSLY REFUSED

- JURISDICTION OF THE WAGE-EARNERS’ | :

NOOMPEAINIS <2 he

A. Appellees’ Assertion, that 28 vu. S.C. §1343(3)

‘Confers No Jurisdiction to Redress Deprivations ©

of Property in Violation of the Fourteenth

Amendment, ‘Is Wholly Unsupported ..... Joules

B. Allegations that a Public Official Has *

_. Deprived a Plaintiff of Fo venth Amend- .

ment Rights Establishes Federal Jurisdiction,

Pursuant to 28 U.S.C. §1343(3) We aaa whee

oa Since Summary Garnishment of Wage- Earners’

, Accounts Unconstitutionally Deprives Them _

of Significant Personal Liberties, The District

Court Erred in Refusing ‘Jurisdiction Pursuant

$0 28 USC. S1348B)é. 2.0 ove o ee ee Leteaes ;

_ IV. 28 U.S.C. §2283 IS NOT A BAR.TO, RELIEF ...... :

A. Appellees’ Assertion, That Summary Garnishment - .

Is a Proceeding in a State Court, Is Erroneous ......

_B.’ The Record in this Appeal Fails To Support .

Appellees’ Contention that 28 U.S.C. §2283

Barred the Award of Any Relief : ieee aie os er

. NO STATE COURT REMEDIES ARE AVAILABLE

TO CONNECTICUT WAGE-EARNERS eg os Hote ew a .

CONCLUSION ..--- +++ sree eevee reer eee eee ees ‘

17 .

- 417

(i)

ae ae oo ee Page

| TABLE OF AUTHORITIES :

Abérnathy v. Carpenter, 373 U.S. 241 (1963) .........5... 2

Adickes v. Kress, 398 U.S. 144 (1970) .......... ivesee’ 16

“Ames v. Hager, 36 Fed. Rep. 129 (C.C. Cal. 1888) ... .. aes Y

Atlantic Coast Line R. Co. v. Engineers, 398 US. 264 -

Pt MM = ates ia anit eee sy oe ee cs Selene eens | Cees

"Bailey v. Patterson, 369 U.S. 31 (1962) ........... Seine, @

Baker v: Carr, 369 U.S: 186 (1962) \. pee Open iad i

Bank of Commerce v. Tennessee, 161 \U.S. 134 (1896) eases 9

Bivens v. Six ‘Unknown Named Agents,\91 ‘S.Ct. 1999"

GUND. ss inn vada deiexediasss Gaeuesas bes 14 -

Boddie v. Connecticut, 401 US°371 (1991) oor been. 17

Bowman v. Chicago and Northwestern Ry. Co.., 115 US.

611 (1885) ......... peiyeey ke re eine ae ae 10

“\. Black Watch Farms v. Dick, 323 F. Supp. 100 Co

\. @D. Conn: 1971) eee ee eee. (agin sts theeseeos 9

* Breedlove v. Suttles, 302 US. 277 (1937)... ee eee ee eee. 3

Cameron v. Johnson, 390 US. 611 (1968) ...2........05. a

Carter v. ¢ Greenhow, 114 U.S. 317 (1885). ....4......005. 9,10 *

Coffin Bros. v. Bennett, 277 US. 29(1921) .............. 18

Corfield v: Coryell, 6 Fed.’Cas. 546 (C.C.Pa. 1823) ......... 14

| Coite v. Lynes, 33 Conn. 109 (1865) ....... a ee ee

Csakany v. Takacs, 143 Conn. 485, 123°A.2d 764 (1956) ©. 18

Damico v. California, 389 U.S. 416 (1967) ... iaekaeh ands - 2, 12:

"Dandridge v. Williams, 397 U.S. 471 (1970) .......... 6, 12, 13

- Dombrowski v. Pfister, 380 US. 479 (1965) .......... ar oe

Doud v. Hodge, 350 U.S. 485 (1956) ...... pene oe

Eisen v. Carlisle and Jacquélin, 391 F.24.555 (2nd ea

ca: Se ee oo Oe eT ee ce ee

‘Eisen v; Eastman, 421 F.2d 560 (2nd Cir. ADD) 03. 5c. 02s ADA

Ex Parte Virginia, 100 U.S: 339 (1880) ....2........0.8.—«&

(i)

" Flast v. Cohen, 392 US. 83 (1968) ..0. fo. s.ceeeeceeee A

Florida Lime Growers v. Jacobsen; 362 US. 73 (1960)-_ Seyi “9

Giles v. Harris, 189 U.S. 475-1903) 6... dee eee. eee

\o Goldberg v. Kelly, 397 U.S. 254 (ence ns. 922, 19349:

Graham y. Richardson, 91 S.Ct. 1848. (i971), so Stes eh Ce Oa

' Griffin v. Breckenridge, 91 S.Ct. 1790 (1971) . he ed Mis 0's tei s 11 :

| Griffin v. Maryland, 378 U.S. 130 (1964) ce oe 6

Gunn v. University Committee, 399 US. 383 (1970) ....... oa

Hague v. C.1.O., 307 U.S. 496.(1939)......9.... nae &-.

Harper v. Virginia Board of Elections, 240 F.Supp.270. its

(ED. Va. 1964), reversed, 383 U.S. 663 (1966) ........-. 3

_ Hill'v. Martin, 296 U.S. 393 (1935) .2..... 20.4000. ay Sh

Holt v. Indiana Mfg. Co:,.176, U.S. 68 (1900) ........,4-.-9,10

_ Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967) ee

Idlewild Bon Voyage — Corp. v. on 370 US. ve

TS UMED Sse ik es ee wy TN ee

* Jameson Co. v. Morgenthau, 307 U.S. 171 (1939) pee ee Er

Java ' v: Depariment of Social Services, 91 S.Ct. 1347 : ar

COT a oe cs RATE -

Joe Louis Milk Co. v. Hershey, 243 F. Supp. 351 (ND. Palle:

Mh IED ess Gis ge fae cope es SF

Joint Anti-Pascist Refugee Committee v. Saiialt ,

341 US. 123 (1951).......-. ee URE ie bbe ads 17

Jones v.\Mayer Co., 392 U.S. 409 (1968) ~ Oar ae waa island 11

Kelley v. Kelley, 83 Conn. 274, 76 A. 291 (1910) . eee

“Lane v. Wilson, 307 U.S: 268 (1939)....”. . i ae. 23

Laprease v. Raymours Furnjture Co., 315 F. Be. 916.5 ee

(N.D. N.Y. 1970)".....\... bia ti wk cae ee ‘*

- Lewis v. Martin, 397 U.Sy452(1970) ............ mg 12

Local Loan Co. v, Hunt, 292QU.S. 234 (1934)... ashes 93

"Love v. Navarro, 262 F. Sup 520 (C.D. Cal. 1967) ....... is

902 (Sth Cir. 1964) ......... 15

McGuire-v. Sadler, 337

~ (McManigal v Simon, 382 R24 408 (7th Cir _ 1967) ives 15

| Mengelkoch v. Indystrial Wilites anaes 393 US. . ie

“N WRI Fikeahiy (dese Oe 64s kere aes Nets view 5 ‘if

rua Handy, 6 Conn Cir. 103; 266, A.24

Y904'(1969) \. 6... e eed ~ heres oe RR ee ef

“Monroe ¥. Pape, 365.U,S. 167 (1961) as oe

_. Moody'v. Flowers, 387 U.S. 97 (1967) ...... Nets nea 2

"National Transportation Co: v..Toquet, 123 Conn. 468, en,

doh. 4: tt et: FE eee eee . 24

, Northwestern Fertilizing Co. v. Hyde Park, 18 Fed. Cas. .

RE Os es. ees s

Osmond v. Spence, 39 LW. 2660 (D- Del: 1971) pe asc ate 16"

BE... Perez'v. Ledesma, 402 U.S.'82 (1971) “......... Sere 3, 9G

| a ~ Pleasants ¥. Greenhow, 114 USS, 323 (1885) eee 9,10

| . Potter v. ‘Appleby, 136 Conn. 641, 73 A.2d 819 (1950) : shee

; “Rinaldi v. Yeager, 384 US. 305 (1966)... ..- ng ts acs ae

a _ Rogers v. Commissioners, 18 Conn. Supp. 401 (1953), i .

: - affirmed,.141, Conn. 426, 106 A.2d 757 (1954) - Sree.

- Resick ¥. Board. of Commissioners, 307 US. 208 (1939) - ee, oe

Rosado v. Wyman, 397 US: 397 (1970) oo ee 12°

Sachs v. Nussenbaum, 92 Conn. 682, 104 A. 393 (1918) . .18,19,.20 °

re. Samiels ¥. Mackell, 401 US. 66 (1971) ........2.. aes oe ae

+ > Sanders v. Dobbs House, 431 F.2d 1097 (Sth.Cir. 1970), 2... 14

: | Santingo.v. MéEEtoy, 319 F. Supp..284 (ED: Pa. 1970) ..... 7515

/. "‘Schackman v. Amnebergh, 387 hs) | ns ee

— | ~ "Scott v. Young,"421 F.2d 143 (4th Cir, 1970) > ....... oe

BP Screws v. United States, 325 U.S.91 (1945) .2.2..2.,.... 6,8

"Shapiro v. Solman, 396 US. $(1969) .2...... REN 49

Smith v; Board of Commissioners, ‘259 F, Supp. 423 et

~~ (D.D.C, 1966), affirmed, 380 F.2d 632 (DC. Cir, 1967) . -/ 2

‘Soell v. Wynian, 393 US. ek Ce ee noe

=: -Saiadach v. Family Finarice Corp., 37 Wis.2d 163, ee

ee _ NW.2d 259 <i csi aacapaarene 395, US. 337 cA ls . $16, 23

Starin v. New York, 115 U.S. 248 (1885) ........ Wed eit a ee

Sterling v. ‘Constantin, 287 U.S. 378 (1934) UV MOul Fe yualoaiol®

Stratton v. St. Louis Ry., 282 U.S. 10 (1930)... .. TER eeey 5

Strauder v. West Virginia, 100 U.S. 303 (1880) ......: eres 8

Swarb v. Lennox, 314-F. Supp. 1091 (E.D. Pa. 1970) ....... 20

Toucey v, New. York Life Insurance Co., 314.U.S. 118 !

Mt een Tee See eee Oe Riioata bay Me oe

United States v. Arizona, 91 S.Ct. 260 (1970) NLT adit a it

United States v. Cruikshank, 92.U.S. 542 Le) a pe Sai ois ae

_ United States v. Georgia P.S.C., 371 U.S. 285 ass ge eee

United States v. Guest, 383 US. 745 (1966) ......

United States v. Jackson, 302 U.S. 628 (1938) ..... Re

United. States v. Price, 383' U.S. 787 (1966) ee 8,9, 10, 11

_ United States v. Waddell, 112 U.S. 76 (1884) ...........42 «9

_ United States v. Williams, 341 U.S. 70 (1951)...........8,9,10

_ United States v. Wiseman, No. 35286, ie Pe le : hess

| ROL sc as Te vere 738

me United Transportation Union v. - Michigan Bar, 91 S.Ct. . eos

WRITE. hig vk cb che Pree gere 49

se _Nasquez v. Superior Court, 94 Cal. Rept. 796, 484 P. a8 |

OI ko a a 20

Washington v. Lee, 263 F. Supp. 327 (MD. Ala. 1966), ees ai

"affirmed, 390 U.S. 333 (1968) ...... 2. i Ee :

‘Wilson y. City of Port Lavaca, 391 US. 352 (1968).

| Wiltsie v. California Department of Corrections, 406 a

'. F.2d 515 (9th Cir. Rt) seer a cy eer kaeas eae

_ Wiscénsin v. Constantineau, 400 U.S. 433 (1971)

"Wyman y. Boddie, 91 S. Ct. 2168 Gon)”. SERRE ;

_ Wyman v. Rosado, 91 S.Ct. 2169 (1971). 2... steno

"Wyman v. Rothstein, 398 US. 275 (1970)... 8. ee. ey

san ay sah la a eye =

x . 6 ‘ °

4. i : mt

. . . .

: a vi)

Constitutional Provisions: |

United States Constitution, Para are I 3

United States Constitution, Amendinent XIV ...... ‘aaa. passim

ConnectiGft Constitution, Article 4, Section 25 (1965) eka J

‘Statutes; | “e4

IBUSC.§241 ce, mattis pioebietdae. 2

I8US.C,§242 ........ SW eanaac pee tescemalecae as Mee

WURE ATS oo ec ceeds ener eee

2B US.C.81331...6..... Per ere Ue cues 10,18

* MURS MBS nes ce aoe eeidaae case’. 44

28 U.S.C. $1338... 0... eee. Papaanasy errr 14

EUSL F190) 6 oss ews Se ease sane: . 14.

28 U.S.C. §1343(3)........., ecuapevaned satan is Ns

28 U.S.C. §2281...... Maeva eed re oe ee

28 US.C. §2283 2.2... rere

RB GIB Ok oc Sei os eee be + passin

BR PRE oc axe ee has peek *

[Le ae enn er rere edeaaerna—

Connecticut General Statutes: * , |

tS ee ere rer: ME ee err ee oa

PE re ess gt inese ey tes dey yst es 24

§52-50 2... ...00, patie hee thes Creer en:

§52-259..... Snead alata es er ana a

SL a ne were re er

BESO Slack vegan sighed hut uipseds eae. 19

IG ow xan Fo aanbiickn do eueean aes avegs 19

IR ccna bxwin te ake coene a teen p anes 4,21

Wisconsin Laws

BI io ik cn 2 Pee eiepe ile es ee aa 24

os cick aceenns Be AGswaseatiak 24

I ae a nh SES tenderer serge 24

(vii) |

Page

. A

C27GOD oo vc et ge eh oe cee s need urease 0 40an0 85 “23

S274BS 6 os enters de cditedivsinssnese e-6o OBR aS 23

Books and Articles:

_ Administrative Office of the United States Courts, 1970 fo

Report ...... errs MEEK S ea veavewsheseccedncs UW

American Law Institute, Study of the Division of Jurisdiction

Between State and Federal Courts .......6.0.00000 415

Barron & Holtzoff, Federal Practice and Procedure (1961) ...

Comment, The Three- -Judge District Court and —

Review, 49 Va. L. Rev. 538 (1963)..:......2....00. a7

Comment, 39 Mich. L. Rev. 284 (1940) 7....... errs: 8

Note, 52 Harv. L. Rev. 1136 (1939) .............. ..t.. 10

Note, Federal Court Stays of State Court Proceedings:

A Re-Examination of Original Congressional Intent,

38 U. Chi. L.’Rev. 612 (1971)... eee eee eee eee eeee 2

4 Gressman, The Unhappy History of Civil Rights Legislation,

50 Mich. L. Rev. -1323 (1952) © ............0.00% poe te 8

-Reich, The New Property, 73 Yale L.F. 733 (1964) Pe eereee |

Stampp, The Era of Reconstruction. (1965). .2..... geese O85

Wright, Class Actions, 47 F.R.D. 169 (1969) t$¢iveneseg, Oe?

‘Miscellaneous: | . . |

Cong. Globe, 42nd Cong., Ist Sess. ....: i ae we NS |

~. New York Times, May 14,1971 2. ...2.0...5..0..4. .. 16

1963 Connecticut Practice Book: 7 |

WMA rng cd chs news ese eee sess hategee ee MM

TC) Ty gees eels tele 24

§602.......... chee eee eer rere tr 24

$608A ...... etuebeeses ten rr”

wom 6 S20 lenge dies ted cee ceas ct BD?

§§751-756 . 2.6... Cr eee

Form 532 2.0.02... cece eee eee y nsadaaennl 19

= .. INTHE

Supreme Court of the United States

No. 70-5058

DOROTHY LYNCH, et al., ;

. ap Appellants, .

HOUSEHOLD FINANCE CORPORATION, bt al.,

Appellees. | .

APPEAL FROM THE - UNITED STATES DISTRICT COURT FOR THE ~

DISTRICT OF (CONNECTICUT

REPLY BRIEF FOR APPELLANTS

__ THIS COURT CORRECTLY. NOTED PROBABLE

JURISDICTION PURSUANT TO 28 U.S.C. $1253

The Brief for Household Finance Corporation and Deputy

Sheriff Friedler entirely misconceives this Court’s jurisdiction

pursuant to 28 U.S.C. $1253. The wage-earners’ appeal is

properly before this Court since: (a) their cases were

“required .. . to be heard and determined by a district court

of three inden” 28 U.S.C. $1253; and (b). they appeal

“from an order of a three-judge district court ‘granting or

denying . . :an- interlocutory or permanent —

‘Gunn v, Univeraiy Committee, 399 U.S. 383, 386-87 (1970).

' . Where these conditions are satisfied, this Court has $1253 ©

jurisdiction regardless of the grounds. upon which the three-

* judge court’ s decision rests. E.g., direct review granted pur-

~ suant to $1253 where three-judge courts dismissed for lack

of subject-matter jurisdiction: Baker v. Carr, 369 U.S. 186 |

‘ (1962); Abernathy v. Carpenter, 373 U.S. 241 (1963); Doud.

v. Hodge, 350. U.S. 485 (1956); Florida Lime Growers vy.

_ Jacobsen, 362 U.S. 73, 85 (1960); direct review where

- three-judge .court ‘dismissed on. ground relief barred by 28

U.S.C. $2283: Cameron v. Johnson, 390 U. S. 611 (1968);

' abstention: Dombrowski y, Pfister, 380 U.S. 479 (1965);

Zwickler v. Koota, 389 U.S. 241 (1967); failure to exhaust |

administrative remedies: Damico v. California, 389 U.S.:416

(1967).

-(a) . Since the cases at Bar were required to be heard by

a three-judge court, they are directly appealable pursuant to’

28 U.S.C. 81253. The finance company’s argument, that .

direct appealability depends upon “whether the order of

“dismissal required the participation of three judges,” (Brief

for Appellees, p. 8), was repudiated in ‘Florida Lime’ Growers

v. Jacobsen, supra. There Mr. Justice Frankfurter, dissenting

but stating the view of the entire Court, explained:

“I start with the proposition, as I understand the Court

to do, that whether a case is one directly appealable

* here under 28 U.S.C. -81253 depends upon the com-

plaint, dnd not upon the result in the District Court.

If three judges are required to hear the claims which

are —_. then we have direct appellate jurisdic-

tion....” 362 U.S. at 89."

' See, also, Idlewild Bon Voyage Liquor Corp. v: Epstein,.370 U.S. ;

713, 715 (1962); U.S. v. Georgia P.S.C., 371 U.S. 285, 287-288 (1963)

_ (once. [the three-judge court is] convened, the case can be disposed

of below or here on any ground, whether or not it would have justi-

fied the calling of a three-judge court.”); Sterling v. Constantin, 287

US. 378, 393-94 (1932) (the jurisdiction of the three-judge court

“extends: to every question ‘involved . . . and enables the court to rest -

its judgment on the decision of such of the me spoamce as. in its. opinion

effectively dispose of the case.”). ,

: mith et ok ae ae {continued |.

e reyersed,-383 U. S. 663, 665 (1966), found the constitutional

oe ue

Bizarre and unprecedented results flow from the. finance

company’s contention that direct appealability depends upon

the result in the district court. For example, a three-judge

court is unnecessary for.the determination of insubstantial.

constitutional questions. Ex Parte .Poresky, 290.U.S. 30

(1933). Since the three-judge court in Harper v. Wirginia

Board of Elections, 240 F.Supp. 270 (E.D. Va. 1964),

issue indistinguishable from Breedlove v. Suttles, 302 U.S.

277 (1937), an appeal pursuant to the finance company’s

proposal*would lie only in the court of appeals.

_. The three-judge court below held, assuming the existence 8

of subject-matter jurisdiction, alternatively that 28 U. S Cc.

§ 2283 barred an injunction. . That holding is reviewable

_ pursuant to $1253; Cameron .v. Johnson, supra. The. ~

finance company’s argument must concede the propriety of .

direct review: a single judge lacks authority. to determine

whether § 2283 bars relief, in a case otherwise appropriate

for a three-judge court. Idlewild Bon Voyage Liquor Corp.

'_ v. Epstein, supra. (See Brief. for Appellees, p. 10:n.3). The

finance company’s proposal-would thus require teview, by

the court of appeals, of the district court’s dismissal for lack

of subject-matter jurisdiction; and, by this Court, of the dis- “

_ missal on the ground that § 2283 barred relief. The absurd-

ity of such a result demonstrates the speciousness of the

finance company’s contention. v3

Direct appealability depends, not lipon the result in elie

district court, but upon this Court’s determination as to *

“‘whether the three-judge courts in these cases were properly

convened.” Moody v. Flowers, 387 U.S. 97, 99 (1967).

On direct appeal, this Court has jurisdiction “over all grounds of .—

attack against the statute.” Florida Lime Growers v. Jacobsen, supra,

362 U.S. at 84. (emphasis in Original). The finance company’s cof- '

tention (Brief for Appellees, p. 29) that this Court may not review

the district court’s denial of a declaratory judgment is thus erroneous.

Samuels v. Mackell,.401 U.S. 66 (1971); Perez v. Ledesma, 401 US.

82, 89-90 (Stewart, J. or

“Thus, the correct determination of whether the action —

_ should have been heard by three judges cbntrols the disposi-

tion of the appeal—whether to the Supreme Court or the |

Court of Appeals.” Comment, The Three-Judge District |

Court and Appellate Review, 49 Va. L- Rey.” -538, 564 (1963)

(emphasis added).? Alleging jurisdiction. pursuant to 28

U.S.C. $1343(3), the wage-earners’ complaints sought to

enjoin sheriffs, deputy sheriffs, and constables of the State _-

of Connecticut’ from levying garnishments pursuant to Sec-

tion 52-329 of the Connecticut General Statutes on grounds

of its unconstitutionality (App. p. 10, 23-24, 37-38). These

allegations meet the requirements for a three-judge court,

* Idlewild Bon Voyage Liquor Corp. v. Epstein, siupra, includ- -

ing the existence of subject-matter jurisdiction. (See Brief —

for Appellants, pp. 19-35). Since the three-judge court was

properly convened, 28 U.S.C. §2281, a direct. appeal lies

pursuant to-§ 1253. 7

(b) The wage-corniens’ complaints were heard by a three-

judge court which denied their prayer for a permanent

injunction. Holding that 28 U.S.C. § 2283 barred the injung- _

tive relief which the complaints requested (App. p. 10, 26),

‘the court entered judgment “denying all relief sought by

o Plaintiffs and dismissing the complaints” (App. p.19): As

conceded by. the finance company, “‘the three-judge court

itself entered the order of dismissal” (Brief for Appellees,

p. 8).?. ‘The finance company’s reliance on Mengelkoch v.

' Industrial Welfare Commission, 393.U.S. 83 (1969), . and

Wilson v. City of Port Lavaca, 391 U.S. 352 (1968), is thus

misplaced. Courts there held that the requisites of three-

- 2See, e.g, Rorick v. Board of Commissioners, 307 U.S. 208 (1939);

Jameson Co. v. Morgenthau, 307 U.S, 171 (1939); Bailey v. Patterson,

‘369 US. 31 (1962); Zemel v. Rusk, 381 U.S. 1, nich donne

Cohen, 392 U.S. 83, 88-89 (1968). |

3The three-judge court was designated by the Chief Judge of the:

- United States Court of Appeals for the Second Circuit (App. p. 17).

In its judgment, the: district court identified itself as acthree-judge -

court (App. p. 19. ;

C:°

General of the State of Co

_under color: of law when perving process (Brief of the

_ has: certain statutory “duties” in serving ‘protess, and in

judge court jurisdiction were lacking, and orders of dismissal }

-were entered by single district judges.4

The finance company’ s ‘contention that: $1253 is unsatis-

| fied, on the ground that no “*hearing”’. preceded the denial

ofa permanent injunction (Brief for Appellees, p. 9), merits |

"little comment. “While no- evidentiary: hearing was conr

ducted—as the wage-earners observe in their Brief (pp. 1; 6,

9)—the district court “heard” the causes, as stated in its -

_ judgment. (App. p.-19), pursuant to briefs in the Lynch and i:

Toro gases and oral argument in the Toro case.

‘Since the wage-earners appealed from the. order ate

properly convened three-judge court which denied, their

prayer for a permanent injunction, this Court has jurisdic. |

tion pursuant to a US. C. eee

a : xe

- DEPUTY SHERIFFS, SHERIFFS AND CON-

STABLES ARE PUBLIC OFFICIALS WHO,

. WHEN ENGAGED IN THE SERVICE OF PRO- |

CESS, ACT UNDER COLOR OF STATE LAW.

Deputy Sheriff Barrett’s srs , submitted. by the Afto

ecticut, denies that he acts

Appellee, Charles H: Barrett, Deputy Sheriff of New Haven

County, pp. 6-9). Curiously, that Brief itself d€tails Con-

necticut’s statutory scheme which regulates every facet of .

deputy sheriff Barrett’s office.’ The sheriff, like his deputies, .

364

*This Court’ 's. decisions.£ in Wilson and Mengelkoch repudiate “the

finance company’s assertion that “whether a single judge or three

judges ordered dismissal does not matter” (Brief for Appellees, p. 8).

Those cases illustrate the well-established Tule that no appeal lies to.

this Court from the decision of a single: judge, even: where three judges

are in fact required. Stratton v. St. Louis Ry., 282 U.S. 10, 15-16

* -

-_ .(1930);Schackman'v. Amebergh, 387 U.S. 427 | (1967); Mengelkoch

v. Industrial Welfare Commission, No. 23,997, -._ F.2d (9th

. Cir. 1971). — that —— court a dissolved aaone’

i . Te

~ ee

. making oth service is “carrying out the routine functions

of his office: ...”. (Brief of Deputy Shgriff Barrett, pp, 6, .

7). As Bart notes,. “service is gen@fally made by the. _

deputy sh (Brief, p. 6) who, with the sheriffs and con-”

stables, is thus the State’s agent in effectuating its statutory

policies relating to service of writs and garnishment process.‘

A sheriff, like his deputies, is an officer of the Executive

branch of government. - Connecticut Constitution, Article |

_ Fourth, Section 25 (1965)..He isa. -

- “public official under trust from the state, which has

‘ invested him with a portion of its sovereign power

to be exercised in- the interest of the public.”

- Rogers v. Commissioners, 18 Conn. Supp. 401, 403

(1953), affirmed, 141 Conn. 426, 106 A.2d 1357

(1954).:

The deputy sheriff performs | his duties “under color of:

_ Office,” pursuant to “power given him by our statutes.”

. Coite v. Lynes, 33 Conn. 109, 115, 113 (1865). All society

has an interest in the diigecm performance of these duties,

since’ :

nd “It is the wise policy’ of the law that its process shall

be directed to known public officers, and the law

sanctions departure from this policy om in cases

of supposed necessity.” :

Kelley v. Kelley, 83 Cons. 274, 276; 76 A. 291, 292 :

(1910). ‘

~ Ani unbroken line of cases establishes that. a public officer

acts under color of law when he performs duties authorized

_by statute.. See, e.g., Screws v. United States, 325 U.S..91,

107-108, 111 (1945); Griffin v. Maryland, 378 U.S. 130, 135

- (1964);Dandridge v. Williams, 397 U.S: 471 (1970); Adickes <

v. Kress, 398 U.S. 144.(1970). See, also, Monroe v. Pape,

: 365 U.S. 167 (1961); Lapgape y. sims Furniture Co., :

Sin the state court suits against Mrs. Lynch, and Mrs. Toro, only -

a public officer could have served process. ‘An indifferent person —

- would have been barred from serving process. Conn. Gen. Stat. §52- -50.

-_ redress the deprivation, by persons acting under color of

‘authoritative support to such an interpr@tation (Brief for

315 F: seni 716, ‘ates NY. 1970): een vy, “McElroy, sn

319 F.Supp. 284, 292 (E.D. Pa. 1970). In United States Sion

y, Wiseman, No.-35286, | F.2d _ 2 Qnd Cir. 1971), ©

the second circuit held that private proo process servers. acted

_ under color of law in effectirig service and sighing affidavits :

_ of service. Surely, then, a public officer such as a@ deputy

‘sheriff a fortiori serves $ process under color of state law.

cee :

THE DISTRICT COURT ERRONEOUSLY REFUSED |

JURISDICTION OF THE WAGE-EARNERS’

a COMPLAINTS | o

a Appellees’ Assertion, That 28 US.C. $1343

a ‘Confers No Jurisdiction to Redress Depri-

vations of Property in Violation of thejFour-

_ teenth Amendment, is Wholly Unsupported. © .

The wage-earners’ Brief demonstratés phat 28. U.S.C.

§ 1343(3) and 42 U.S.C. §1983-were ena in order to

state law, of Fourteenth Amendment rights. 17 Stat. 13

(1871). By its terms, the Act of 1871 makes actionable all

such: Fourteenth Amendment deprivations, whether of life, —

liberty, or property. The legislative histo f that Act gives

Appellants, pp. 28-33). Since the enactmt of 28 U-S.C.

§ 1331 did not contract the scope of the A@t of 1871, 8 ogo t

and 1343(3) must today be accorded the full. scope which

_ their Framers intended (Brief for Appellants; pp. 33-35). a Cs

. None of the appellees has produced the slightest evidence

ie of a Congressional purpose to restrict, by enacting what is

" now 28 U.S.C. $1331 in 1875, the scope of federal jurisdic-

‘tion pursuant to the Act of 1871. 'Fhey have not refuted

the fact that the Act of 1875 swrought a far-reaching expan-

sion of federal authority which is wholly inconsistent with —

an intention to contract Civil Rights Act jurisdiction. -

. . Instead, appellees. assert that “traditionally, the ical

Amendment and assgciated Civil Rights Acts were primarily i

’ regatded as protectors of civil, not property tights” (Brief .

< 12). None | of the authorities cited by the. *:

finance company provides any support for this proposition.® —

Indeed, the first reported construing the Act of 1871 ©

upheld the right‘ of a: corporate plaintiff to seek redress for

yo. an allegedly unconstitutional deprivation | of its_property. /

“ —_. Northwestern Fertilizing Co. v. . Hyde Park, 18 Fed. Cas. 393.

(C.C. Tl. 1873).

Without citing any supporting authority, the "finafide

. company further asserts .that 18 U.S.C. §242-8 1983” »

~ “criminal analogue, ” Monroe v. Pape, supra, 365 U.S. at 206 -

(Frankfurter, 'J., dissenting)—“‘has:never been“understood by - |

this Court to apply to deprivations of property”’ (Brief for * :

Appellees, p. 13 n. 5). However, § 242 is derived from § 2 —_

_ of the Civil Rights Act of 1866, 14 Stat. 27. United States

v. Williams, 341 U.S. 70, 83 (1951), overruled on other.

grounds, United States v. Price, 383 U.S. 787, 797-98 (1966). oes

‘Section’1 of that’Act guaranteed, as the finance company sine

‘states, “the property rights of newly-freed Negro citizens”

(Brief for Appellees, p. 14). Section'2 of the Act of 1866

provided criminal. penalties for any, violation of $1. “Screws. |

®'y, United. States,“325 U.S.91, 98-100 (1945). In. United

States v. Wiseman, No. 35286, . F.2d _. (2nd

°Strauder v: West Virginia, 100 U.S. 303 (1880), and Ex Parte- Vir:

_-ginia, 100 U.S. 339 (1880), upon which the finance company relies,

« do not suggest that property rights-are not: “civil rights.” Both cases

emphasize Congress’ undoubted power to enforce the Fourteenth

_ Aimendment’s guarantee against: Unconstitutional deprivations of prop-

. erty as well as life and tiberty. ‘100 U.S: at 310; 100 U.S. at sat by 22

The finance company’s Brief (p. 12)-also relies upon a Comment by ‘

Eugene Gressman, 39 Mich. L. Rev. 284, 287 n. 13-(1940). This —

_ Comment, which cites no authority for its ‘statement that the Four- ©

teenth Amendment did'not protect property rights, has clearly been

repudiated by its author. See, Gressman, The Unhappy History of -

Civil Rights Legislation, 50 Mich. L. Rev. 1323 (1952), which docu-

_ ments the intimate relationship between the Civil Rights Act of 1866, .

> 14 Stat. -27, and the Fourteenth Amendment. ok ae |

Wate <

. e zt

1971), the second circuit affirmed convictions under 8 242

against professional. process servers WAQ, deprived alleged.

debtors’ of their property without due process by signing.

_ false affidavits.of service. Sections 242 and 1983 “are in«

‘pari materia,’ meaning that they are meant to protect=the

same rights of the victim.” Wiltsie. v. California, Depart-

ment of Corrections: 406 F.2d 515, 517 (9th Cir. 1968).

See Cong. Globe, 42nd Cong., Ast Session, App. 68 (Rep.

Shellabarger); Monroe .v. Pape, 365 U.S. at 185, and 212 — |

‘n.18 (Frankfurter, J., dissenting). Since the Ku Klux Act

of 1871 was “patterned after what is now 18 U.S.C: §242°"

(Brief for Appellees, p. 13 n.5), 881983 and 1343(3) must .

be construed . to redress any violation, by persons acting

under color of law, of-the Fourteenth Amendment, see

United States v. Price, supra, including unconstitutional —

deprivations of real and personal praperty.”

_ The contention (Brief for Appellees,p. 14) that Carter y.

: Greenhow, 114 U.S. 317 (1885), Pleasants v. Greenhow, 114

"U.S. 323 (1885), and Holt v, Indiana Mfg. Co., 176 U.S. 68

‘ (1900), support the denial of jurisdiction is untenable. None

of these cases refused jurisdiction pursuant to:the “personal \\ -

liberty—property, rights’’ . test. “Unique considerations,”

Perez v. Ledesma, 401. U.S.°82, 126, 127 (1971) (opinion.

of Brennan, J.), have caused federal courts to decline juris-

diction of cases, such as these, challenging the collection of.

a state’s taxes (Brief for Appellants, pp. 33-34 n. 22).8 More-

acl US.C. §241 guards the same rights as §242.. See United States “s

v. Williams, 341 U.S. at 87-93 (Douglas, J., dissenting); United States .

y. Price, supra, 383 U.S. at 797, 802-803. Section 241 protects the

# tight to perfect the property interest in a homestead claim. United .

> States v, Waddell, 1.12 U.S. 76, 80.(1884). ee

— 8“Taxes beinggthe sole means by whiclht sovepeignties can maintain

their existence,*“Bank of Commerce v. Tennegsee,. 161 U.S.. 134, 146

(1896), states have a fundamental interest in revenue collection. While

~ the “civil rights” which 88 1983 and 1343(3) protect, Holt v. Indiana

Mfg. Co supra, 176 U.S. at 72, included “property rights” (Brief for

Appellants, p. 32 n. 21), a common view at the.time of Holt was

that ‘political rights” were excluded, United States vy. Arizona, 91 ;

_ S. Ct. 260,, 284-85 n. 15 (1970) (opinion of Harlan, J.) (“political

over, these cases refused jurisdiction on th

litigant was not deprived of a right “secured bf

_ tution,” within the meaning of §§ 1983 and 1343 (3), unless

* the Constitution “directly secured” the right to the individ-

ual. Carter v. Gréenhow, 114 U:S. at. 322, 323;.Pleasants v.

Green sr Bowman ¥..Chicago and North western Ry.

Co., 115 US. 611; 615-16 (1885);:Note, 52 Harv. L. Rev.

1136, 1138-9 (1939). Pursuant to this rationale Holt,

‘ rélying’ exclusively on Carter and Pleasants, held that fed-

eral courts must refuse §1343(3) jurisdiction when state -. ,

“laws were alleged to deny equal protection « or to deprive ©~ A.

individuals of their property without due process, 176 U.S. — a.

at 72.. Compare, United States v. Cruikshank, 92 U.S. 542,

554-55 (1875); United States v. Williams, supra, 341 U-S.

-at 73, 77, overruled: United States v. Price, supra, 383 U.S. -

+ at 7197-98: Hague v. C1.O., 307 U.S..496 (1939) (opinion .

of Roberts, J.); SlaughteP-House Cases, 83 U.S. 36, 73-9

(1873).° In Monroe v. Pape, supra, 365 U.S. at 171,- this

Court overruled this narrow interpretation of 8§ 1983 and

-1343(3), and held that rights under the entire Fourteenth _—_..

- Amendment were “securéd by the Constitution.” Agreeing : ©

that §1983’s_- patties Se

: of * “protection of ‘rights, privileges or immunities secured |

by the Constitution’ encompasses what ‘dye process"

of law’ and ‘the equal protection of the laws’ of the

Fourteenth Amendment guarantee against action by

the States.”” 365 U.S. at 205.'°

Tights” are “rights arising, from governmental organization’ Giles v.

- Harris, 189 U.S. 475, 497 (1903) (Harlan, J.,dissenting). A federal

court’s refusal of § 1343(3) jurisdiction ip. a challenge. toa State’ s tax | 2 |

law, at the time of Holt, could thus rest on the ground that only" : '

“political rights” were at issue. a |

*By contrast, the test: for whether an action was one “arising

under” the’ constitution and laws, within the meaning of 28 -U.S.C.

§ 1331, was far easier for a litigant to meet. —s v. New York, 115 .

‘US. 248, 257 (1885). :

The ‘legislative history of the Act of 4871 domonsimntie that .

8 1983 and — — redress for any violation, by persons _

- a:

Aiipelines? reliance on 1 Holt, Carter and ~—_ is thus

-inapposite. io

_ Congress enacted $§ 198 83 and 1343(3) in furtherance of

its power. to enforce the ourteenth Amendment. Nothing

in the language of those statutes suggests that Congress failed) —

* fully to exercise its constitutional authority to remedy ee

' deprivations of life; liberty and property which: violate the LNG

Fourteenth Amendment. The legislative history of $8 1983

and 1343(3) provides not the slightest basis for departing a

from their plain meaning: If such a deviation is deemed _

desirable, however, Congress is the branch of. our govern-

" ment which is empowered. so to decide. United States v.

Guest, 383 U.S. 745, 749. (1966); United States v. Price,

* supra, 383 U.S. at 789, 806-807; Jones v. Mayer Co., 392 ©

"U.S. 409, 437 (1968); Griffin’ v. Breckenridge, 91 S.Ct.

1790, 1795, 1796 (1971). Courts, by contrast, “are not at

liberty ‘to. seek ingenious analytical instruments,” | United

States v. Price, supra, .383 U.S, at 801, or “filtering -

mechanisms” (Brief for Appellees, p. 15), for denying to

$8: 1983 and 1343(3) the interpretation which Congress most

reasonably intended.

’ *

‘

» &

’ under color of state law, of the Fourteenth Amendment.. £.g., Cong.

Globe, 42nd Cong., Ist Sess. 244 (message from President Grant);—______—

332-34 (Mr. Hoar); 369-70 (Mr. Monroe); 375-76 (Mr. Lowe); 429 |

_ (Mr. Beatty); 448 (Mr. Butler); 459-61 (Mr. Coburn); 475-76 (Mr. .

_. Dawes);. 482-83 (Mr. Wilson); 501 (Mr. Frelinghuysen); 568 (Mr.

_,, Edmunds); 577 (Mr. Carpenter); “607 (Mr. Pool); §50-51 Ot Sum- .

“Shellabarger); App. 81-85 (Mr. Bingham) App. .216 Or. Thurman); °

App.\ 310. (Mr. meeess - a

£2 ; "ee

e | Allegations That a Public Official Has Deprived A .

-Plaintiff of Fourteenth Amendment Rights Estab-

lish Federal Jurisdiction Pursuant to’ (28 Uz S.C.

§ 1343 (3).

e Despite some lower-court interpretations of Justice Stone’s

- concurring opinion in Hague v. C.1.0., 307 U.S. 496, 518

(1939), this Court has never adopted the “personal liberty—

‘property rights” test. ‘See, Monroe v. Pape, 365°U.S. at 171

and 205. In fact, recent decisions emphasize this Court's: dis-

regard of the test. E.g., Java v. Department of Social Services,

91 S.Ct. 4347 (1971); Rosado v. Wyman, 397 U.S. 397, 402- “4

. 403, 422-23 (1970); Rinatdi v. Yeager, 384 U. S. 305 (1966). l

Repudiation of the.test wquid not, therefore, unsettle any e. .

' established doctrine. To the contrary, its express rejection: © .°-%

would clarify the jurisdictional basis of this Court’s decisions 4

. which conflict with the test."?:

foe Appellees’ argument that welfare benefits have a “special -

§1343(3) status” (Brief for Appellees, p. 21) which is denied

Wage-earners surely distorts the legal history of this past —

‘~decade, Until recently, courts held that the denial of welfare

benefits; unlike the denial of more traditional property inter-

ests, was not even n justiciable. E.g., Smith v. Board of Com-

——

___—"in- Bien'y: Eastman, 421 F.2d 560, 566 n. 10 (2nd Cir: 1969), a

Judge Friendly suggested that adherence to the “personal liberty- |

-. property rights” formula would bar from the federal courts many

-actions alleging the unconstitutionality. of a state’s welfare program..

This Court,, of course, has affirmed § 1343(3) jurisdiction of every

_ welfare case which it has reviewed, even: when. the welfgre recipient

claimed an unconstitutional denial of only three to fur dollars

monthly of her “property.” Rosado v: Wyman, 397 U.S. $97, 402-

oe 403, 422-23 €1970); Wyman v. Rothstein, 398 U.S. OPO} Vacat-

ing and remanding, 303-F- Supp: ‘D. N.Y. 1969); Wyman v.

~\ Boddie, 91 S.Ct. 2168 (1971); affirming, 434 F.2d 1207: (2nd Cir.

~~ 1970); Wyman v. Rosado, 9% S.Ct. 2169 (1971), affirming, 437 F.2d

. 619 (2nd Cir. 1970).. See, also, Damico v. California, 385 U.S. 416

"4(1967); Snell v. Wyman, 393 US. 323 (1969); King v. Smith, 392 U.S.

309, 312 n. 3 (1968);Shapiro-v;Solman, 396 US. 5 (1969), affirming,

. 300 F Supp 409 (DB. Conn. 1969); Goldberg v. Kelly, 397 US. 254.

(1970); Dandridge v. Williams, 397 US. 471 (1970); Lewis v Marhis

397. US. 552 iia

aren neat ante mec

. 43 . a rea

missioners, 259 F. Suse. 423 (D. D.C. 1966), affirmed, 380.

F.2d 632. (D.C. Cir.: 1967). See, generally, Reich, The New

Property, 73 Yale L.J. 733 (1964). This Court has now

atcepted the designation of welfare benefits as “property,”

Goldberg v. Kelly, 397 U:S. 254,262 n.8 (1970); Graham y.

Richardson, 91 §.Ct. 1848, 1853 (1971), and has affirmed

jurisdiction of all constitutionally-based challenges to: public

_ welfare programs. Supra, note.11.. However, this Court has

rejected the contention that welfare benefits enjoy a specially

- privileged constitutional position distinct from other types of -

property. Dandridge v. Williams, 397 U.S. 471 (1930). It

would be anomalous indeed if the working poor were now

. for the Acts of Re

denied access to the federal courts for the ‘defense of their

property on the ground that welfare recipients atioy a pecu-

liarly favored § 1343(3) status. !?_ Ned ye ;

“If anything, the historical he el indicates a eine con- ©

gressional regard for the working poor. An seeking support

anstruction, political advocates frequently

‘minimized distinctiéns between white working men and the

recently emancip ed.Negroes. The e Fourteenth-Amiendment :

was essential to ‘secure-the rights of b both. Senator —

Wilson of | Massachusetts explained:

’ “We have advocated the rights of the. black man,

because the black man was the most oppressed type

Bees seek to distinguish the welfare cases from the cases at’

. Bar by arguing that welfare benefits are “dispensed as the result. of a

legislative determination that, without:such assistance, welfare recipi- -

ents cannot exerci tal constitutional rights” (Brief -

—for Appellees, p. 21). However, appellees cite no such legislative

determination in support of this assertion. Nor do they refer to.

any decision of this Court expressing this rationale as the ground for’ .

- accepting jurisdiction: in welfare cases. A three to four dollar monthly

_ benefit loss, which has been the subject of some welfare litigation,

can hardly be said to. directly affect the exercise of constitutional

rights. See, note 11, supra. That welfare: benefits have their origin

. in a “legislative determination” is not unusual. The Framers of the

Fifth and Fourteenth Amendments made a “legislative determination”

___ that property is essential to the exercise of constitutional rights (Brief

~ for Appellants, p. 32 n. 21).

of the toiling men of this country.... The man who.

is the enemy of the black laboring man is the enemy

_ Of the white laboring man.the world over. The same

"influences that go to keep down and:crush down the .

=e rights of the poor black man. bear down and oppress

the poor white laboring man.” Stampp, The, Era of,

Reconstruction, 102 (1965).

See, also, Brief for Appellants, p. 24; Corfield v. Coryell, 6

“Fed. Cas. $46, 551 (C.C. Pa. 1823).

Section. 1331 would. hardly be rendered: “virtually mean-

| ‘ingless” (Brief of Deputy Sheriff. Barrett, p. 12) by repudiation - a

of the “personal liberty—property rights” .test. -E.g:;Bivens ©

-v, Six Unknown Named ,Agents, 91 Set 1999 (1971).. ;

- Clearly, Congress never er intended“that $1331 should bar. fed-

eral: courts ts from-entertaining suits which are plainly authorized,

__without regard to amount in controversy, by another juris-

~ _ diction-conferring statute... E.g., 28 U.S.C. $8 1337, 1338:

". . Ames v. Hager, 36 Fed. Rep. 129 (C. C. Cal. 1888). Compare,

Sanders v. Dobbs House, Inc., 431 F.2d 1097 (Sth Cir. 1970);

Scott v. Young, 421’ F.2d: 143 (4th Cir. 1970) (Scope of 42 -

USE. § 1981 undiminished by enactment, of Civil Rights .

Act of 1964). See, also, United States v. Jackson, 302 US.

628 (1938); Brief for Appellants, pp. 33-35, 20 n. “V1.

Nor wo express rejection of the ‘ “personal liberty:

“ property sae test unduly overburden the federal courts. ~

- - Cases challenging’ the constitutionality of ‘state tax laws

would continue. to be barred by 28 U.S.C. $1341 (Brief for |

_ Appellants, pp: 33-34 n..22).. Indeed, many of the cases

which appelkes cite, purportedly to. demonstrate. the vitality —

of the test, are such tax cases (see Brief for Deputy Sheriff :

. Barrett, p. 14; Brief for ‘Appellees, pp. 16-17).- Since this . :

~ Court hag not adopted: the test; see note 11, supra, a

“flood” of cases will not result from its express rejection.

. ‘Additionally, some cases in which § 1343(3) jurisdiction has —

> been refused must be entertained by the federal courts under |

other jurisdictional statutes. Eisen v. Eastman, 421 F.2d

560, 566-67 aca Cir. 1969). Finally, the inherentsuncer-

_—

ical

. .

oO.

Sate Potminialiae’ tend NON NANG tid Se eee Ss

oS a

1S.

ail

‘The finance company’s contention, that federal district -

tainty: of the “personal liberty-property rights” test has ite" ;

. self engendered much needless litigation (Brief for Appellants,

‘pp. 22-27),!3 apa :

courts are “overburdened-by the claims of civil rights liti- - _

_" gants” (Brief for Appellees, p. 23), is uninformed.’ Although

litigation—involving federal civil rights is increasing, such

: _ _actions comprised only 4.6% of the. suits instituted ift dis-

trict courts during fiscal year 1970. Administrative Office

of the United States-Courts, 1970 Report, p.‘II-31. This

figure equals the number of labor relations cases filed, and~

is one-fourth the number of prisoner petitions, By contrast,

19.6% involved: actions on contracts. “10.7% of all cases

filed. in.the district courts involved motor vehicle torts, lack-

ing any. federal coloration other than the parties’ diverse -

_ citizenship. ‘Jd. ‘If federal courts ate carrying an excessive .

_ workload, the’ remedy surely does not lie in limiting .federal -

civil rights actions. . Indeed, recent proposals havé urged

that the‘district courts should entertain all cases involving

. cues of federal law, regardless of jurisdictional amount:

erican Law Institute, Study of the Division of Jurisdic-

tion between State and Federal Courts, 24-5, 172-16 (4969).

"'3Compare, McGuire v. Sadler, 337 F.2d 902'(Sth Cir. 1964)

- (8 1343(3) jurisdiction in suit to rescind and enjoin sale of public’

land), with, McManigal v.. Simon, 382, F.2d: 408 (7th Cir. 1967) (no

284 (E.D. Pa. 1970) (§ 1343(3) jurisdiction to determine whether dis-

§1343(3) jurisdiction over dispute whether corporation should donate em

law library to county}: Compare, Santiago v..McElroy, 319°F. Supp...

-tress seizures of property by constables violated due process), with,

Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967) (no § 1343(3) jur-

isdiction where sheriff allegedly took $500 of prisoner's property). .

to assume jurisdiction for the purpose of determining whether the

complaint states a claim upon which relief can-be granted.” Joe Louis .

Milk Co. v. Hershey; 243 F. Supp. 351, 354-55 (N.D, Ill.'1965). E.g;

Love v. Navarro, 262 F. Supp. 520, 522 (C.D. Cal. 1967) (8 1343(3)

jursidiction over controversy as to construction of road; complaint

dismissed for failure to state claim’upon which relief could be granted).

o ‘

_ “Experience teaches that the wiser and better practice is for. the court —

C. Since Summary. Garnishment of. Wage-Edriens’ oe

Accounts -Unconstitutionally Deprives Them: of |

: Significant Personal Liberties, the District Court’

Erred. in. Refusing Jurisdiction — Pursuant: to 28

U.S.C. 8 1343(3). ee

The wage-earners’ Brief demonstrates that summary gar:

nishment unconstitutionally deprives wage-earners of signi- =

| ficant personal liberties: (Brief for, Appellants, pp. 22-27)..

If this Court upholds the “personal liberty-property: rights”

test, therefore, the district court nonetheless erred in \ refus- |

ing jurisdittion. :

Prejudgment garnishment niannety deprives wage-earners ,

of the means to subsist, impedes their access to courts of

law for’ the resolution of controversies, damages their repu- :

tations, creates the possibility of criminal prosecution, and -

impairs their ability to contract for the purchase of family

“Necessities and to earn a living (Brief for Appellants, pp. 22+, :

27, 13-18). As the Rev. Theddore M. Hesburgh, Chairman.

a _of the United States Commission on Civil Rights; recently °

stated, civil rights are ““mere shadows” unless the economic

rights of the underprivileged are secured, New York Times,

“May 14, 1971, p. 32. Surely’ summary garnishment effects :

a serious denial of personal liberty. See, Osmond ». Spence,

39 L.W. 2660 (D. Del. 1971) (three-judge court).

The garnishment of these. wage-earners’ acconets wreaks -

exactly the same havoc upon the working poor as in Sniadach

_v. Family Finance Corporation, 395 U.S. 337 (1969). There

_ this Court.recognized that summary garnishment “may asa

practical: matter drive a wage-earning family to the wall.”

_ Id. at. 341-42. ‘Fhe only possible difference between the

‘= plights of these wage-earners and Christine Sniadach is that =~. «

~ the latter’s garnishee was her employer. e This distinction

_ is surely without significance: Capsth ae fee"

~ “Indeed, as the finance company’s brief states; Mrs. ‘trates ‘gar-

7 nishee was “a credit union maintained by Mrs: Lynch’s employer” |

‘(Brief for. Appellees, p.'2). Like Christine Sniadach, these wage- a

__ earners relied upon their garnished wages: ‘to meet the common neces- a &

= ‘sariés of ned .

“(The] mati requiremienstot i process is} that 2 an

-individual\ be given“an opportunity for a hearing

_ before he-is deprived of: any: significant property:

7 interest, except for extraordinary situations where:

tes some! yalid governmental interest is at stake: that

-4Fustifies postponing the hearing until after the event.

. --Boddie v. Connecticut, 401 U.S. 371, 379 (1971).

aK, _—

. ~~ wg in Sniadach, the summary garnishment of wage-earners’ ;

accounts may force working persons to abandon defenses and :

settle cases without any judicial mediation.. (Brief for Appel-

_lants, pp. 13-15,-14 n. 6). In order to exercise his right to a

‘erty which is necessary for subsistense. Compare, Goldberg

_ ¥. Kelly, supra, 397 U.S. at;264. Atccess to the courts, and—,

the availability of fair procedu S, are ‘of profound import* :

ance in our society’s hierarchy of values. Joint. An ti-Fascist

Refugee Committee v. -McGragh, 341 U. S. 123, 171-72 -

_ -s . (1951) (Frankfurter, J., concurring); United Transportation

i... Union v. Michigan Bar, 91 S. Ct. 1076 (1971).. Their denial

7 a” v, Connecticut, sma 401 U.S, at 3745.

2 8 U. S. C. $2283 Is’ NOT A BAR TO RELIER..

A. ‘Appellees’ Assertion, that Summary Garnishment iv .

Appellees have urged this Court te rule that ‘summary

: pxsiehebnt | is-a “proceeding in a State court,” within the —

meaning. of 28 U.S.C. §2283¢: They rely primarily upon Hill

v. Martin, 296 US. 393 (19 5). Appellees made an identical

‘argument to the three-judge court which, in failing even to —

_ cite Hill, apparently deemed it inapposite. Indeed, the three-

|| judge court did: not hold that summary garnishment isa _

state court proceeding. The court recognized that. “no -

court’ order i is required” to an a eee account

d “| ° ae

‘

ob a2

day in court, the alleged debtor must forego the use of prop- ia

- constitutes the d¢privation of a fundamental liberty. Boddie: pi

_ A Proceeding in a State Court, Is Erroneous 7 Sse

| 18

(App. p. 23 n. 2).'$ As the wage-earners explain (Brief for

Appellants, pp. 13-18, 35-38), garnishment in Connecticut

occurs “before and without any judicial proceeding,” Coffin

- Bros. v. Bennett, 277 U.S. 29, 31 (1921), and ‘remains fully —

-effective without any “actions by the Court [or] by its

ministerial officers.” Hiil v. Martin, supra, 296 U.S. at

403 (see Brief for Appellants, p. 37 n. 24).'>

Summary garrjishments are thus not ‘peccsadiogs in the. -

_* Connecticut courts: Moreover, the wage-earners in this

appeal. have no possibility of instituting ‘proceedings which -

_ would lead to. reduction: or release of their garnishments.

a The finance company concedes that “state courts may have

~ > no: power to. release good faith garnishments except to the

: extent that they . are excessive” (Brief for Appellees, p. 36).

s However, state courts 4re barred from: releasing even a gar-

- itishment-which is levied as an abuse of process, ‘Csakany y.

Fakacs, 143 Conn 485, 128 A.2d 764 (1956), upon exempt .

. property. Potter Sa ppleby,,” 136 Conn. 641, 73 A.2d 819

-(1950). _ The court: has no-authority to. ‘inquire into. the

' probable validity of the creditor’s claim; or whether special _

“circumstances warrant provisional security for an alleged

: creditor. Sachs v. Nussenbaum, 92 Conn. 682, 689, 104 A.

.° 393, 395 (1918). As the District Court of’ Connecticut

recently explained: : ;

'S Appellees do not claim that the three-judge court held summary

garnishment to be @ proceeding: in a state court. Nor do appellees —

* refute the wage-earners’ demonstration that, under Connecticut law,

, _ garnishment is levied prior to institution of the in personam suit,

, (Brief for Appellants, p.,36); that gatftishment may occur nearly two

months before a creditor must docket his suit in the state court; and -

oo. that distraught debtors may thus be forced to abandon their defenses

and settle cases without any judicial mediation (Brief for oe

pp. 14, 17 n. 8, 18 n. 9). -_

é Bar, that §2283 prohibited federat courts from enjoining collection of

a. judgment rendered pursuant to lengthy state court proceedings.

See Atlantic Coast Line R. Co. v.‘Engineers, 398 U.S. 281, 287 (1970);

Pe ~ Toucey v. New Been tegen Ce oe 118, (136.(1941).

a .

eee

“Prior to - termination ‘ot the litigation, an. n attach?

_ ment may be reduced or dissolved only upon a show- -

- ing that the attachment. is excessive, §52-302, or _

upon substitution of a bond with surety, § 52-304,”

Black Watch Farms v. Dick, 323 F. Supp. 100, 101- |

2 (D. Conn. 1971) (emphasis added).: 3 |

Since the-garnishments in the cases at Bar are not. excessive

within the meaning of § 52-302, and since the wage-earners —

cannot afford a bond, they have no grounds for invoking -

' the state Court’s jurisdiction. a7 (See Brief for Appellants, -

pp. 13-18).

The. appellate division ‘of Connecticut’ s- circuit court;

where the in personam actions against Mrs. Lynch. and |

Mrs. Toro are pending, ‘has unequivocally ruled that. the

‘circuit court lacks authority to dissolve a garnishment on

the ground that it was levied unconstitutionally; and that

the refusal to dissolve a garnishment on grounds of uncon-

stitutionality is not appealable. Michael's Jewelers v. Handy,

6 Conn. Cir. 103, 266 A.2d a (1969) (Brief for ‘Apogiants,

pp. 15- 16). ;

Where no court order is necessary to freeze a ‘wage-carner’s:

assets from the date of levy until final disposition of the suit,»

and where an alleged debtor may not institute state Court

proceedings with respect to summarily-levied garnishments,

a Connecticut garnishment can hardly be deemed a ““pro-

ceeding in a State court.” '®

17In order to chllenge an excessive garpishment, or to substitiite a

bond, the alleged debtor must commence 4 proceeding distinct from the -

creditor’s suit, Sachs v. Nussenbaum, supra, by serving process upon the -

officer who attached or garnished his property, and upon the creditor

or his attorney. Conn. Gen. Stats! 8§.52-301, sh 306; 1963 Connecti-

cut Practice Book, Forms $32, 534.

'8Connecticut appears to be the only state wean an naeey -_

for an alleged creditor to. garnish or attach property without any

_ attion by a judge- ~or clerk of court. Other states require the writ to

be issued by a judge or clerk of court. E.g., Hawaii Stat. §651-3,

652-2, 633-1; Idaho Code § 8-502; Mass. Laws C. 223 8816, 30, 42,

'C. 246; Mont. Rev. Code § 93-4302. See, also, N.H. Laws §509. 7, oe

EX Ve re re: 3 6

5 ae

B. The Record in. This Appeal Fails To Support

Appellees’ Contention that 28-U.S.C. § 2283

Barred the Award: of Any Relief. ® -

Appéllees ‘Wholly ignore the wage-earners’ argument that

no evidence in the récord justified the district court’s con-

clusion that enjoining summary garnishments would ‘ ‘sub-

stantially interfere” with state court proceedings (Brief for

_ Appellants, ‘pp. 40-42):. More than fifty years ago, the

_ Connecticut. Supreme Court held that the “‘progress of the ~

pending suit . .. was not concerned with or in any way

affected by” the dissolution of.a garnishment.” Sachs v.

Nussénbaum, supra, 92 Conn. at 686, 104 A. at 394.

Appelites’ argument that no plaintiff or defendant class

_. Can be defined’ should properly: be made to the district .

- court an remand, at a hearing pursuant to Federal Rule

23(c). ty Similarly, this Court carmot affirm, on a barren.

seq. (writ must bear the seal of court, test of justice of the court,

and facsimile of clerk’s signature.) As a condition to issuance of the

writ, the alleged creditor must generally post a bond, e.g., Ariz. Rev.

Stat. § 12-1524; Calif. Code of Civil Proc. §539; Wis. Laws .§ 266.06;

New York C.P.L.R. 6212; and must frequently demonstrate the exist-

“ence of special circumstances requiring his protection by an. attach-

ment or garnishment, é.g., Minn. Stat. 571.41; New York C.P.L.R. .

» $6201; Ga. Code 8 8-101, 8-501; Vt. Rules Civil Proc. .§§ 4.1, 4.2;

-, Ala. Code, Title 7, 38 846-47.

9 As the wage-earners. explain (Brief for cameras p. 40 and n.

. 26), the district court’s erroneous jurisdictional ruling was its exclu-

sive reason for stating that no. plaintiff class could be’ defined. The

definition of the class in the complaints (App. p. 6, 34) is sufficient

to satisfy Rule 23. Swarb, v. Leriméx, 314 F. Supp. 1091 (E.D: Pa.

1970); Eisen v. Carlisle and Jacquelin, 39:1 F.2d 555,561-63 (2nd Cir. .

1968); Wright, Class Actions, 47 F.R.D. 169 (1969); 2 Barron and

Holtzoff, Federal Practice and Procedure.(1961), 1969 Pocket Parts,

pp. 77-78. See, also, Vasquez v. Superior Court, 94 Cal. : ae.

. 796, 484 P.2d 964 (Supreme Court, 1971).

Appellees’ arguments as to the alleged lack of definition of the

defendant class are similarly groundless. Washington v. Lee, 263 F.

Supp. 327, 330-31 (M.D.-Ala. 1966), affirmed, 390 U.S. 333 (1968).

Deputy sheriffs adéquately represent the class of process servers.

See note 5, supra, and a text. Not only is : the class of.

- record, the district court’s denial of future injunctive relief. -

_ The, record indicates that persons claiming to be. creditors

‘of the wage-earners may sye them , exposing them to the . “9

risk of summary garnishment ‘prior to. suit (App. p. 44, 46-

- 47). On remarid, counsel for the wage-earners are prepared —

to move for the intervention of other persons who similarly —

-may be sued in the Connecticut, courts: A hearing in the.

district court will demonstrate that irreparable harm will

occur to these persons absent injunctive relief, since garnish- .

ments are a major cause of personal bankruptcies, particularly *

_ in a period of recession; that Household Finance Corpora- .

tion and other major Connecticut creditors routinely garnish.

. the scarce assets of their alleged debtors prior to suing them;

and that the pressure of garnishment forces alleged. debtors.

to. settle cases without any opportunity for a judicial deter- .

mination of the validity of creditors’ claims. — v.

Family Finance Corp., supra. *°

, Finally, appellees’ argument that §2283 bars the award .

Of declaratory as well as injunctive relief ignores. the plain

language of $2283 and the historical context in which $2283 -

' -was.enacted. See, Note, Federal ‘Court Stays of State-Court

Proceedings: A Re-Examinatio#® of Original Congressional - BB

~ Intent, 38 U. Chi. L. Rev. 612 (1971). See, also, Samuels

v. Mackell, supra, Perez v. Ledesma, supra (opinion of Bren-

~ nan, J.).

Defendants clearly identifiable, bate their financial sakes in ‘serving

writs ensures that they will vigorously defend 0 eras of

Conn. Gen. Stat. $52- 329. 7

Since Mrs. Toro is entitled to o future injunctive relief, her case is

not moot. The district court, it may be noted, did not hold that Mrs:

Toro’s complaint should be dismissed on grounds of mootness (App. .

p. 22 n. 1): Mrs. Toro’s complai t also requested that the garnished

funds be returned to her “without > (App. p. 38). She has not

‘ been reimbursed the $10.00 “ea expenses” which her account was

charged as the result of the gar nt (App. pp. 42,43).

A?)

«aye

‘NO STATE COURT REMEDIES ARE AVAILABLE

TO CONNECTICUT WAGE- EARNERS

Household Finance Corporation and Deputy Sheriff.

| Friedler contend. that state court remedies. are adequate for

‘contesting the constitutionality of summary garnishments

(Brief for Appellees, pp. 35-38). This argument, which the - |

Attorney General of Connecticut has not advanced on behalf:

of ee! Sheriff Barrett, is wholly speculative and

‘unfounded. 7 ‘3

Michael 's Jewelers v. Handy, supra, forecloses a constitu- Z |

tional challenge to summary garnishment in, Connecticut's

circuit court. The finance company states that the decision

in Michael’s Jewelers “was apparently not appealed further”

(Brief for Appellees, p. 37). However, no appeal lies. as of

right to the Connecticut Supreme Court from thé appellate -

division of the circuit court. The. Supreme Court reviews a

judgment of the appellate division only when the latter cer- _

-tifies that a substantial issue of law warrants the Supreme -

_ Court’s consideration; ‘or where the Supreme Court itself

decides, in its discretion, that review is warranted. 1963

Connecticut Practice Book 8740-742. In Michael’s Jewelers.

Dy, Handy, the appellate division failed to certify the exist-

ence. of a substantial issue of law. See 1963 Connecticut

Practice. Book 8751-756. Although the alleged debtor in

Michael's Jewelers filed a petition for certification -in. the

- Connecticut Supreme Court, the petition Was never acted

upon sirice the creditor withdrew the underlying in personam 7

action (see Brief of appellants in reply to appellees’ Motion

to Affirm and Motion to Dismiss or Affirm, at p. 2 n, 3).

' The court of common pleas and the superior court are, like

the appellate division, bound by the Connecti¢ut Supreme

Court’s decisions. Those decisions bar courts from dissolving _

or reducinga garnishment except where explicitly authorized

by statute (Brief for Appéllants, pp. 14-16). The finance

company has offered no authority for the proposition that

“more .apt to deviate from those decisions than was | ‘the

"Lane y. Wilson, 307 U.S. 268 (1939); Monroe v. Pape, 365

facts that Wisconsin. courts possess the power, denied to

‘Connecticut courts, to dismiss a garnishment where abuses ———

- come to the ceurt’ ‘s-attention-Sniadach v._ Family Finance

- Corp., 37 Wis.2d 163, 173-4, 154 N.W.2d 259, 265 (1967),

courts from dissolving a garnishment on grounds of uncon-

in Sniadach); and that the refusal to dissolve a garnishment

_, persons from redress in its courts. Unless the party appeal- —

dollar entry fee, a fifty dollar record fee, and gives security

23 -

the court of common n pied’ paula superior court are any

appellate division in Michael’ s Jewelers. Aas

The Connecticut Supreme Couft is the only state forum .

offering the bare possibility that wage-earners might receive

a full hearing as to the constitutionality of prejudgment

garnishment. But this Court has never required litigants—

particularly indigent litigants—to exhaust all state remedies,

no matter how time-consuming or speculative, as.a condition

of vindicating their federal constitutional rights in a federal

forum. E.g., Local Loan Co. v, Hunt, 292 U. S. 234 (1934);

U.S. 167:(1961); Wisconsin» Constantineau, 400 U.S. #39:

(1971).

Despite these obvious barriers to redress; tite finance com-

pany chides the wage-earners for not resorting to the state

courts:as Christine Sniadach did in Wisconsin (Brief for -

Appellees, pp: 37-8). The finance company neglects the

reversed on other grounds, 395 U.S: 337 (1969); that no

prior decisions of the Wisconsin Supreme Court barred lower

stitutionality (see memorandum of decision of Wisconsin

circuit court; pp. 37, 39 of Appendix filed with this Court |

in Wisconsin is, unlike Connecticut, appealable. . Mahrie v.

Engle, 261. Wis. 485,-53 N.W.2d. 176 (1952); memorandum

of decision of Wisconsin: circuit court, supra; Wis. Laws

§§ 274.09,. 274. 33. oo

The finance company utterly i ignores the pibsaiaitial | mone-_

tary barriers which Connecticut has erected to bar indigent

ing to the Connecticut Supreme Court pays a forty-five

‘ ° : s iS oo

in. the 1 amount of $150. 00, “the appealshall be void and of - ~

no effect,” 1963 Connecticut Practice Book $602: Conn.

. Gen. Stats. 8852-259, 52-269. Costs of transcripts must also

-..: ~ be paid. 1963 ‘Connecticut Practice Book § 608A. ;

_A party seeking redress in the superior ‘court must pay an

_ entry fee of forty-five dollars; in the court of.commen pleas, .

_ the fee is thirty dollars. Conn. Gen. Stats. ¥52-259. Trial ~

fees and costs, which the’ ‘legislature has now increased, are

‘ substantial. Conn. Gen. Stat. 852-257, as amended, P-A. 302. °

|. (effective October 1,.1971). Neither of these courts may

_ rendé#:a declaratory judgment -unless, as a jurisdictional

. requirement, “‘all persons having an interest in the subject

“matter of the complaint are parties to the action or have

reasonable notice thereof.” 1963 Connecticut Practice Book,

_ $309(d). The prohibitive cost of serving process upon such

"persons or of: notifying them, National Transportation Co.

_v.. Toquet, - 123 Conn. 468, 481-5, 496 A..344, 349-51.

_ (4937), renders a “declaratory action a will-o’-the ‘wisp to-

low-income wage earners.2* Wisconsin, where Christine

Sniadach litigated her claims, requires relatively low entry

fees, e.g., Wis. Laws § 271. 21, 251.90,.and permits indigent

persons tc to proceed in forma pauperis. Wis. Laws 8 271.29. -

; 21The circuit court is prohibited from rendering. a’ declaratory _

‘judgment. Conn..Gen. Stat. §52-29. In order to transfer a declara-

_ tory action from the cireuit court to’the court of common pleas or

_ Superior court, as suggested by the finance company (Brief for

' ~- Appellees, p. 37), a thirty dollar fee must be paid to the clerk of the

circuit court. Additionally, the usual entry fee must be. paid ‘to the

clerk-of the superior court or common: aa court. Conn. Gen. Stat.

ae Gy» ne .

- .21963 Cove Phactics Book §28A A (effective Seladie 1, 1974),

establishes the procedure to’ be. followed where a plaintiff claims a

fight. to proceed in forma pauperis. See, Boddie v. Connecticut, supra.

On July 8, 1971, Governor Meskill of Connecticut vetoed Public Act

No. 714, “An’ Act Conicerning Waiver of Court Fees and Costs + Payable .

to Indigent Persons.” His veto message stated:

“In my opinion this legislation gives greater latitude to the court |

to waive payment of costs and fees and expenses of services ~

° than is required by the most recent Supreme Court decision.

“In Connecticut, therefore, no remedies are available for -

_. challenging the constitutionality of summarily-levied garnish-

ment@ . Where the alleged debtor is indigent, the finance .

company’s contention that such remedies exist is frivolous.

e re .¢

Fe : CONCLUSION }

The district court had jurisdiction over the \igewenast

complaints. Neither injunctive, declaratory, ‘nor future

injunctive relief was barred by 28-U:S.C. 82283. This Court,

__‘ pursuant to 28 U-S-C. $1253, — reverse the judgment

7 \ _-of the district court.

Respectfully submitted,

S* 4 tat lo ® | David M. Lesser ;

“ oe = - William. H. Clendenen, Jr.

‘ Kenneth R. Kreiling

- S 265 Church Street #808

- New oem apo mart satctli 06510

203-787-5861

“Allen Sims

611 Congress Avenue

New Haven, Connecticut 065 19 BD

203-777-4405 or nen id

._ | te Attorneys for Appellants Se

“I would prefer to be limited by the opinion of the Supreme

‘Court. concerning the right of an — to — without

7 - the payment of fees.”: :

. Letter of Goverhor Thomas Meskill to Hon: Gloria Schaffer, Secretary

of the State. | |

° ‘ . ; . » @ . .

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P Aw SE : .

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: ; - e .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.