Lugar v. Edmondson Oil Co. - Oral Argument

ORAL ARGUMENT OF ROBERT L. MORRISON, JR. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Lugar against Edmondson Oil Company,... 80-1730.

Mr. Morrison, I think you may proceed whenever you're ready.

Mr. Morrison: Mr. Chief Justice, and may it please the Court:

The case before the Court today is another challenge of the pre-judgment seizure, somewhat on the order of the Fuentes case and its various progeny.

It bears a rather unusual past history which I would like to go into just a little bit because it bears on where we are today.

Mr. Lugar, the petitioner, was the lessee/operator of Lakewood Truck Stop in Pittsylvania County, Virginia, down near the North Carolina border.

He was its sole proprietor.

Mr. Barbour is the President of Edmondson Oil Company who sold fuel to Mr. Lugar for resale, and Mr. Lugar had an open account with him.

That was the only relationship between Edmondson Oil Company and Mr. Lugar.

On the 31st of May, 1977, Mr. Barbour as President of Edmondson Oil Company swore out a pre-judgment attachment petition in the Circuit Court of Pittsylvania County, which is the trial court of general jurisdiction in Virginia.

The petition in question alleged that Mr. Lugar was, I believe, assigning, concealing, disposing or converting his assets with the intent to hinder or delay his creditors.

No fraud was alleged in the petition.

This, as I said, was sworn out on the 31st of March, 1977.

On the 1st of April, 1977, it was filed in the clerk's office of the Circuit Court of Pittsylvania County.

The clerk, upon receipt of the petition for pre-judgment attachment, as mandated by the Code of Virginia, issued a writ of attachment to the Sheriff of Pittsylvania County directing him to levy on Mr. Lugar's goods.

The sheriff did levy, as is shown in the Appendix, in his return on the 1st, the 2nd and the 4th of April on Mr. Lugar at Lakewood Truck Stop and also on his bank accounts.

At that point, his business assets were frozen, his bank accounts were frozen and he was prevented from doing business.

In Virginia, the pre-judgment attachment petition process is materially different from the detinue process.

We have both.

For a pre-judgment attachment petition you need only appear before the clerk with a sworn petition alleging that the defendant debtor is concealing, disposing, assigning or converting his assets with intent to hinder, delay or defraud his creditors.

Now, there are other grounds but they are not applicable here; they deal with out-of-state defendants.

Unidentified Justice: But you filed a suit either simultaneously or suit had been filed either simultaneously or before that, hadn't it?

Mr. Morrison: The petition for an attachment is the filing of the suit.

Unidentified Justice: They are combined in one document?

Mr. Morrison: Yes, sir.

If the attachment petition is dismissed... if the levy is dismissed, I should say, the action proceeds as a motion for judgment, which is the same thing as a complaint in Virginia by federal procedure.

So even though in this case the levy was dismissed, it went on as a motion for judgment and ended in a judgment against Mr. Lugar.

The writ issues by the clerk under the law as a ministerial act on the filing of the petition.

He issues a writ to the sheriff, no bond is required for the levy, although a bond for an actual physical seizure would be required.

The sheriff goes and levies and really shuts them down, because the bank was not about to allow him the use of the money with a levy attached to it.

Unidentified Justice: Do you say this is just like Fuents against Shevin, then?

Mr. Morrison: I would say it's very similar to Fuentes v. Shevin, Your Honor.

The difference that I would make between this and Fuents v. Shevin is that in Fuentes v. Shevin you had various items of personal property such as, I believe, a stove, seized.

In this case we had everything seized, or everything levied upon.

Unidentified Justice: So you think it's an even stronger case than Fuentes.

Mr. Morrison: Yes, sir, I do.

I think that this is also very easily comparable to the North Georgia Finishing case.

Then, when the sheriff levies, the defendant may then come in and file an affidavit of substantial defense.

When he files that, the creditor has ten days in which to post a bond to protect his levy.

The levy will be dismissed if the bond is not filed.

And in this case, a bond was filed after the affidavit of substantial defense was filed by Mr. Lugar.

The statute provides that when the petition is issued, there will be a return date on it, and in this case, the date of the hearing was set for one day after the return date; the return date was the 18th of April, the hearing date was set for the 19th, and a hearing was held on that date.

No decision with respect to the levy was received.

A second hearing was held, I believe, on the 1st or the 4th of May, I am not sure which.

And on the 4th of May, 1977, a the Circuit Court of Pittsylvania County finally dissolved the levy finding that no grounds whatsoever had been proven which would support the attachment.

Then, after the state proceedings were concluded, Mr. Lugar filed a complaint in federal court seeking damages for deprivation of rights guaranteed under the Constitution under 42 U.S. Code Section 1983.

The creditor filed a motion to abstain, alleging that a decision of the Virginia Supreme Court might eliminate the need for a decision on federal grounds.

That was the only thing that was contained in that motion.

We briefed the issue of abstention.

The district court turned around and ignored the abstention issue and dismissed on the authority of Flagg Brothers, describing the conduct in Flagg Brothers as more flagrant than the conduct in this case.

Lugar sought to amend the judgment or to have it modified, was unsuccessful in doing so on appeal.

In the Fourth Circuit Court of Appeals, the parties addressed the issue of whether or not the reliance on Flagg Brothers was appropriate.

The court of appeals decided that the district court's reliance on Flagg Brothers was not appropriate, but affirmed dismissal on a different ground that was, again, not addressed by the parties, there being a requirement in suits of this sort for a... either an allegation or a finding of a direct conspiracy, a corruption, if you will, of state power between the private party and the state officials, or, in the alternative as I understand their opinion, such an abdication of control over state power is to make the state merely agents or the state just gives the power to the creditor.

Unidentified Justice: Well, this goes to a fairly fundamental point, doesn't it?

Is there a difference between the Fourteenth Amendment's prohibition which is addressed only to states, and the language under color of state law in 1983?

Do those mean the same thing?

Mr. Morrison: I believe they do, Your Honor.

But I believe that this Court has put a gloss on the meaning of under color of state law to include actions by private parties which are joint and with the state.

And in this situation here, the state acts as an agent of the private party.

The point that I have made in the court of appeals and that I tried to make to the district court was that in the situation that we have here where there is no pre-attachment property interest whatsoever in the property that is going to be seized, that the creditor has no self-help remedy whatsoever.

If he was to act for a self-help remedy, he would be liable for criminal penalties and we wouldn't be here today if that's what had happened.

But instead, what happens is the state, so to speak, on a silver platter says here, you may use us to take sides in your dispute with your defendant debtor initially; we're going to seize his property for you.

Unidentified Justice: Would you take the same position if it were a garnishment?

Mr. Morrison: If it was a pre-judgment garnishment, yes, sir.

Unidentified Justice: Host garnishments are pre-judgment, ar they not?

Mr. Morrison: I have not seen any in my practice, Your Honor.

I have filed a good many post-judgment garnishments against debtors when I was conducting collection cases, but I have not, that I can recollect, seen a pre-judgment garnishment in Virginia, although it is allowed by this statute.

Unidentified Justice: Mr. Morrison, the court of appeals said that it was not clear to it whether you were alleging or asserting that the Virginia statute is unconstitutional.

What is your position?

Are you attacking the constitutionality of the Virginia statute?

Mr. Morrison: At this point I am, Your Honor, and the reason for their statement is... I have been trying--

Unidentified Justice: It wasn't briefed, so it was hard to know if that was your position.

Mr. Morrison: --No, it wasn't briefed and we never even addressed the issue because we were addressing the question of whether or not Flagg Brothers applied.

Unidentified Justice: Mr. Morrison, I thought the issue of constitutionality of the Virginia procedure was not here.

Mr. Morrison: Your Honor, I think the Fourth Circuit Court of Appeals has brought it here.

They have said that the arguments made by Lugar... and the district court has said the same thing... amount to an attack on the statute and that that is what they are deciding; whether or not the statute is constitutional.

Unidentified Justice: I thought the court of appeals said it was not deciding that because it was unclear what your position was.

Mr. Morrison: It said it was not deciding it because under the circumstances it didn't have to decide it.

It found that there was no action under color of state law by the private parties.

But what it said was, in its opinion and I don't know the exact page reference, was that Lugar had said that he was not attacking it, but in fact, that is what he was doing.

But what I was attempting to do, and I didn't articulate it very well, was say to both the district court and the court of appeals there is no need to decide the constitutionality of a statute because the state and the creditor acted without conforming to the state statute.

In other words, there is no need for this Court or any other court to decide the constitutionality of the statute if the creditor and the state break their own law, just as in Monroe v. Pate.

Unidentified Justice: That wouldn't be a 1983 suit anyway, then.

Mr. Morrison: Yes, Your Honor, I believe it would, because in Monroe v. Pate and in Adickes v. Kress and the others, if the state is acting even in violation of its law, it is still action under color of state law.

Unidentified Justice: Well, it may be under color of state law, but what's the constitutional violation?

Mr. Morrison: The denial of due process, Your Honor, under color of state law.

The power and authority of the state under the alleged attachment statute, the attachment statute we are dealing with, are what brought the levy on the Mr. Lugar's assets.

The state acted.

The state acted at the sole behest of the creditor, but it acted without the fraud that the statute requires being present or even alleged.

Unidentified Justice: You say... didn't you have some appellate remedy in Virginia if the state broke... or the private party broke his Virginia's law?

Mr. Morrison: Well, Your Honor, I don't think the private party broke Virginia's laws in the sense of a... for instance, a criminal violation.

What happened was the private party filed a petition for attachment which didn't meet the full requirements of the Virginia law, and the clerk looked at it and issued a writ anyway.

Unidentified Justice: And it was set aside as improvident later, wasn't it?

Mr. Morrison: Yes, Your Honor, it was.

Unidentified Justice: In the Virginia court.

Mr. Morrison: In the Virginia court, it was dismissed as being improvidently--

Unidentified Justice: Do you feel the constitutional issue is covered in your questions presented?

Mr. Morrison: --Yes, Your Honor, I do.

Unidentified Justice: Where?

I didn't see it.

I just read them over and I share Justice Marshall's reaction.

It said federal law, and I guess that includes the Constitution, also the Declaration of Independence.

Mr. Morrison: Yes, sir, I stand corrected.

The initial question is whether there was joint participation or engagement by private litigants with state officials, which is what the court of appeals decided, but it--

Unidentified Justice: Yes, but that's not a constitutional issue.

Mr. Morrison: --No, sir, it's not.

Unidentified Justice: How far would you carry this concept of state action?

Suppose a divorce decree is entered erroneously in some way.

Is that decree of the court state action in the sense that you're arguing it here today?

Mr. Morrison: Yes, sir, it is under Shelly v. Kramer, but I am not quite sure how the erroneous divorce decree is going to affect the person that it's entered against.

Unidentified Justice: It might affect a person in the sense that it might expose one or both of the parties to a criminal charge of bigamy if, in fact, the divorce was not a divorce, a valid divorce.

Mr. Morrison: I believe theoretically it might, but I know that Virginia has procedures for dealing with that.

Unidentified Justice: Mr. Morrison, my comments about the constitutional issue, don't regard them as undercutting your case.

I think your case is here, but I thought the issues were other than the constitutional ones.

Mr. Morrison: I agree with Your Honor.

The issue is whether or not the court of appeals should be reversed and this case should be sent back to the district court for finding of facts.

We are here on a very, very skimpy record.

What is being attacked in the district court is the action of the creditor with the state under color of state law.

Unidentified Justice: Does that mean, Mr. Morrison, if you prevail and there's a reversal on the ground that indeed, this was action under color of state law, then your allegations of unconstitutionality are still to be determined in the district court or the trial?

Mr. Morrison: If they have to be made, yes, Your Honor.

Unidentified Justice: What do you mean if they have to be made?

You don't have a cause of action under 1983 unless you allege either a federal constitutional violation or violation of federal law, do you?

Mr. Morrison: Your Honor, the original complaint alleged a denial of due process under the color of state law.

Unidentified Justice: And that's your constitutional violation?

Mr. Morrison: That's the constitutional violation.

Unidentified Justice: And that hasn't yet been determined.

Mr. Morrison: No, sir, it has not.

Unidentified Justice: But if you prevail, this conduct was under color of state law, then you'll have that issue determined.

Is that it?

Mr. Morrison: Yes, sir, we'll have to get--

Unidentified Justice: But we don't have to determine it here.

Mr. Morrison: --No, sir.

Unidentified Justice: That's why I don't want to complicate your case with determining it in any way.

Mr. Morrison: No, sir, and I don't want to determine it here because we don't have the sufficient facts.

Unidentified Justice: But, Mr. Morrison, we do have sufficient facts if I understand the problem correctly.

The court of appeals said the

"under of color of state law."

or state action issue, however you describe it, is quite different if you are alleging a failure to follow the Virginia statute which resulted in the deprivation of due process on the one hand, or are you alleging that the Virginis statute if followed to its letter, would be unconstitutional.

And the court of appeals said you are making the latter kind of contention.

It's on that assumption that the color of state law issue must be addressed.

And they assume that if you merely allege deprivation of due process because you didn't follow the Virginia law, clearly you have no 1983 case.

Mr. Morrison: Well, Your Honor,--

Unidentified Justice: I don't know if I made that clear or not, but they were quite clear, it seemed to me, in saying that they, despite your ambiguity in the trial court, they read your complaint as an attack on the constitutionality of the Virginia statute.

Mr. Morrison: --Yes, sir.

Unidentified Justice: But they didn't decide it because they said even as so read, there's no state action or color of state law.

Well, as the court of appeals asked me in argument, do you think the statute is unconstitutional, and I said yes, and I do think the statute is unconstitutional.

And if you don't so contend, they also indicated you wouldn't have any basis for a 1983 claim.

We don't have to decide the constitutionality of the statute; but I think we must decide the state action issue on the assumption that you seek to challenge the Virginia statute.

Mr. Morrison: Yes, sir, I understand your point.

The complaint as filed does allege a denial of due process, and it alleges that the parties acted under the color of state law, acted jointly.

There is a specific paragraph in the complaint alleging that Mr. Barbour and Edmondson Oil Company were joint participants with the state and that they acted under color of state law.

Unidentified Justice: But that question is not here; at least it is not in the questions presented, is it?

Mr. Morrison: The question presented is whether on the facts alleged, there was no joint participation or engagement by private litigants with state officials, amounting to action under color of state law.

Unidentified Justice: But it says nothing about the due process.

Mr. Morrison: No, sir, we never reached the due process.

What is... at least, I don't believe we reached the question of due process there.

What we are arguing here is that the case should be returned for a decision on the factual and legal positions taken by the parties.

We are here in part because the lower courts have changed the grounds of the decision from what the parties were arguing each time they made a decision, so that the questions I'm arguing now never were really addressed in the court of appeals, as I understood it, because we were addressing the question of the applicability of Flagg Brothers.

But the question of color of state law--

Unidentified Justice: Well, how does it get here?

If you say the court of appeals didn't consider it at all, how does it get here?

Mr. Morrison: --The court of appeals considered the question of the color of state law, but we were arguing about is whether or not the Flagg Brothers decision, which said that a private warehouseman's lien does not amount to action under color of state law, was dispositive of this case.

Unidentified Justice: Then isn't your real complaint that the court of appeals so far departed from normal usage; you argued a claim to it that you had raised in the district court and it refused to pass on it?

Mr. Morrison: Well, it passed on it.

It said that it did not find Flagg Brothers to be dispositive.

That was in the first page or two of its opinion.

It specifically made that statement, and then it said that it was going to affirm on other grounds.

Unidentified Justice: Counsel, I'm still uncertain what your claim is.

Do you now concede that you are not here on a claim that the creditor and the state acting with the creditor simply violated Virginia's statutory law and procedure?

Mr. Morrison: Your Honor, we are here with the initial complaint which was not drafted by me, and I might say that it was drafted by my then-employer and was given to me as it stood after it had been filed when I left his employment, so I was stuck with that.

The complaint attacks the action of the creditor, and the state with the creditor, on the basis of being a denial of due process under color of state law.

We've never--

Unidentified Justice: Is that on the theory that the creditor and the state simply improperly applied Virginia's law?

Mr. Morrison: --No, Your Honor.

Unidentified Justice: Or improperly applied the facts to Virginia's law?

Mr. Morrison: No, Your Honor.

The claim is that the action as taken, even if it were just line by line in accordance with Virginia law... whether or not they did it right, the claim is that it was in violation of Lugar's constitutional rights.

I don't care if they alleged fraud; we would still claim--

Unidentified Justice: It's just that I'm still confused as to whether you're relying on constitutionality of the statute or on some erroneous allegation of facts by the creditor.

Mr. Morrison: --We are relying on the involvement of the state of Virginia in a process which we believe is, on the face of it, unconstitutional.

Unidentified Justice: Why didn't your raise that in your questions presented?

Mr. Morrison: I don't know, Your Honor.

I tried to draft the questions presented to meet the force and effect of the Fourth Circuit Court of Appeals' opinion.

Unidentified Justice: Well, you lost your case in the Fourth Circuit, they said your case is over because there's no color of state law involved.

Mr. Morrison: Yes, sir, that's what they said.

Unidentified Justice: And you're saying they were absolutely wrong in saying there was no color of state law in this case.

Mr. Morrison: Yes, sir.

Unidentified Justice: That's one of the things you're arguing anyway.

And you want whatever the court of appeals decided reversed, and what they decided was that there was no color of state law.

Mr. Morrison: Yes, sir.

Unidentified Justice: That's what you answered me earlier.

If you prevail as to that, and what you want is a trial on your allegations that the Virginia statute is unconstitutional.

Mr. Morrison: Yes, Your Honor.

Unidentified Justice: And one of the reasons is Shelly v. Kramer, right?

Didn't you say that?

Mr. Morrison: No, Your Honor.

That was in response--

Unidentified Justice: You don't rely on Shelly v. Kramer.

Mr. Morrison: --I have not relied directly on Shelly v. Kramer; I cited--

Unidentified Justice: Because I notice it's not in your brief.

Mr. Morrison: --No, sir.

The Chief Justice asked me about an erroneous divorce decree as being an action under color of state law, and I said that I would assume that it would be based on the Shelly v. Kramer case, that a judicial act is an act under color of state law.

We submit to the Court that in this situation there is action under color of state law.

The state is fully involved up to its neck, figuratively speaking, with the private party.

As I said, to do for the private party what the private party cannot do for itself, by any means, without the private party even having the basic requirement that was found to be important in the Mitchell case of a prior property interest which must be protected and prevented from being depreciated.

In this situation, the creditor simply started the lawsuit with a petition for pre-judgment attachment, which the court of appeals characterized as submission to the neutral arbiter, and then the neutral arbiter turned around and took sides immediately and seized the property.

And when it seized the property, it shut the man down so that you have the same sort of effect as you do with a pre-judgment garnishment of wages in both Lynch and Sniadach.

And we submit to the Court that under the circumstances, where the state is going to involve itself to that extent, that in fact, there is action under color of state law, sufficient at least for an evidentiary hearing.

And as a result, we would ask that the Court reverse the court of appeals and send it back for trial.

I'd like to reserve any time I have left for rebuttal, if the Court has no more questions.

Chief Justice Burger: Very well, Mr. Morrison.

Mr. Haskins?

ORAL ARGUMENT OF JAMES W. HASKINS, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Haskins: Mr. Chief Justice, and may it please the Court:

One thing that the respondents specifically disagree with as stated by the petitioner... and this was subject to comment by the district court in his opinion and, of course, as this Court has already pointed out, subject of some comment by the court of appeals.

When the initial complaint under Section 1983 was filed in the district court, the respondents filed a motion to abstain on the theory that the complaint had to be, in effect, to be a 1983 action it had to be some sort of challenge to the constitutionality of the Virginia attachment statutes.

The respondents, in filing the motion to abstain, requested the district court to abstain so that this issue could be properly determined by the Supreme Court of Virginia.

Now, in arguing the motion to abstain from the outset of this case, the petitioner has affirmatively disavowed any challenge of a constitutional nature to the Virginia attachment statutes.

On page 5 of the district court record, he specifically wrote the district court in memorandum... this is cited in our brief... saying there's no question of the constitutionality of the statute being in issue.

Now, as the court of appeals pointed out, this ambivalence, this lack of any sort of clear challenge to the constitutionality of the statute persisted in the Fourth Circuit Court of Appeals.

On page 53 of the Petition for Write of Ceriorari, which contains the opinion of the court of appeals, it's obvious that the decision of the Fourth Circuit is premised in part on the presumptive, valid state judicial proceedings.

The opinion of the Fourt Circuit, taking the narrow issue as presented to the district court and, of course, to the court of appeals, is that the attachment statutes of the state of Virginia are constitutionally sound.

The petitioner, in answer to Justice Rehnquist's question, seems to assume and has assumed throughout this case, that state action and acting under color of state law for purposes of a 1983 action are the same thing.

Now clearly, the Fourth Circuit Court of Appeals says they are not the same thing.

The Fourteenth Amendment, and, of course--

Unidentified Justice: Mr. Haskins, they did allege in their complaint due process.

Mr. Haskins: --Yes, sir.

The complaint--

Unidentified Justice: You said that they didn't ever raise the constitutional point.

They did raise it in their complaint.

Mr. Haskins: --Well, Justice Marshall, it is the opinion of the district court and the opinion of the Fourth Circuit that the only constitutional challenge at that point, as in all of the cases from Fuentes v. Shevin, right through Flagg Brothers, whether the case was a 1983 case or whether it came up through an appeals process from a state supreme court, there has been a direct attack on--

Unidentified Justice: This says on page 6 of the Appendix, Giles M. Lugar has been deprived of his property by state action without due process of law, as guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution.

Mr. Haskins: --Yes, sir, now--

Unidentified Justice: That's kind of direct, isn't it?

Mr. Haskins: --Justice Marshall, what the petitioner--

Unidentified Justice: Well, I ask you how you would be more direct.

Mr. Haskins: --To say that the state of Virginia, sir, is responsible in some way... the Fourteenth Amendment and the Fifth Amendment, and specifically the Fourteenth Amendment, deal with deprivations of property by the state.

The Fourteenth Amendment, as I understand it... and I would stand corrected very quickly I'm sure,... but it offers no protection from deprivations of property from citizen by citizen.

In the entire complaint, the three counts, sir, the petitioner is that Edmondson Oil and Mr. Barbour, its President, deprived him of these constitutional rights.

Nowhere in this complaint is it alleged... in fact, the petitioner, as I said, in the district court specifically disavows any challenge to state action.

Unidentified Justice: But, Mr. Haskins, I know he did that in the district court.

But in the court of appeals on page 45 of the Cert Petition, the court recognizing this problem, as a footnote says,

"We construe Lugar's claim to include a constitutional challenge to the statute itself."

Now, we must so interpret the claim, must we not?

Mr. Haskins: Justice Stevens, I'll be quite frank with you, sir.

I don't understand that footnote in relation to the statement of the issue on page 53, some five or six pages over.

Unidentified Justice: Well, this is rather unambiguous, and the court of appeals did make it quite clear that if they thought he was merely alleging a misapplication of the Virginia statute, that there would be no 1983 claim at all.

Mr. Haskins: That's correct, sir.

Unidentified Justice: So in order to have something to write this rather long opinion about, apparently the court of appeals said we at least read the complaint to include a challenge to the statute itself.

And therefore, the state action issue is whether the Virginia legislature's statute, plus the involvement of the clerk and the sheriff, is enough state action to trigger 1983.

Mr. Haskins: That's correct, sir, I agree with that.

But certainly, the basis of the court of appeals's opinion, again as they call it the dispositive issue, the reasoning that follows certainly assumes that the petitioner has invoked presumptively valid state judicial proceedings.

There's no question about that.

Unidentified Justice: Mr. Haskins, in your brief you... I think you do anyway... you disavow the rationale of the court of appeals.

Do you adhere to that position here?

Mr. Haskins: Yes, sir.

Justice Blackmun, our position is... and I think the position of the court of appeals is, following up Justice Stevens' question... that state action and acting under color of law are not the same thing.

If state action is all that was involved, certainly the state of Virginia in this case, through the actions of the clerk and through the actions of the sheriff who issued the attachment and levied the attachment, certainly there was state action.

Now, the question is where the state judicial proceedings are presumptively valid, as in this case, as the court of appeals stated, where there is no even insinuation that the clerk and the sheriff did anything wrong, anything out of the ordinary, in fact the petitioner clearly states that they acted only according to law... he states that in the statement of facts to the brief on the merits in this Court.

The question then, as the court of appeals formulated it, is granted there's state action: but for purposes of a 1983 action, is that action under color of state law to sustain a complaint filed under the 1983 section.

And of course, the court, of appeals, and I think properly so, held that it was not.

Now, Justice Blackmun, I don't agree... or I think probably the language of the court of appeals may be too severe to say that in a 1983 action, the plaintiff has got to show corruption of the state official in such a manner that it, in effect, reduces the state's power to a joint concert and joint action between the private defendant.

I think--

Unidentified Justice: Mr. Haskins, it's obvious that there is some confusion as the case progressed through the courts, and perhaps further questioning is not a satisfactory way of resolving it, but what do you make of the pen ultimate paragraph of the footnote 1 of the court of appeals on page 44 where they say,

"As will appear, it has not been necessary in our disposition of the appeal to address the question of whether the property seizure was constitutionally invalid on either ground."

"We therefore note this confusion only to observe that had the challenge been limited to a claim of unconstitutional application of the statute in the course of the state attachment proceeding, we would have had a clear alternative basis for affirmance of the dismissal."

"It is well settled that no cause of action lies under Section 1983 to redress deprivations of procedural due process occurring during state court litigation between private parties."

Mr. Haskins: --Yes, sir?

What is my reaction to that?

Unidentified Justice: Yes.

Mr. Haskins: I think what the court of appeals is saying, Justice Rehnquist, as pointed out by Justice Stevens in his dissent to Flagg Brothers, that a petitioner, if what he is saying is simply that the clerk or the sheriff in issuing or levying the attachment, that there were just certain procedural defects in the Virginia law, certainly that would provide an alternative basis for dismissal of the complaint.

To have any sort of challenge, again to paraphrase Justice Stevens' dissent in the Flagg Brothers case, for a jurisdictional basis of 1983, there has to be a challenge to the constitutionality of the statute itself.

As I read all of the cases, Fuents, Sniadach, North Georgia Finishing, Mitchell v. Grant, in each of these cases there's been an unquestioned constitutional attack on the statute itself in order to give the required state action or acting under color of state law.

Unidentified Justice: Well, Mr. Haskins, I gather from the citations in that footnote that my brother Rehnquist referred to, there's no decision of this Court that no cause of action lies under 1983 to address deprivations of procedural due process.

And those citations indicate that the circuits are in conflict over it.

That the Fifth and Second so hold, perhaps also the Tenth, but the First apparently... note the "But see Kermit"... apparently goes the other way.

Mr. Haskins: Yes, sir.

But I think these circuits are in conflict.

Justice Brennan, in regard to the opinions of the circuit court of appeals which the petitioner has cited in his brief,... there are some five or six from the various circuits throughout the country... again, in each of these cases as well as the cases that I've mentioned by this Court, each case involves a direct challenge to the constitutionality of a state statute.

Unidentified Justice: Not a procedural default--

Mr. Haskins: Rights through the substance of the statute itself.

That, in our opinion, sir, is what is lacking in this case as far as giving the district court any jurisdiction under 1983.

Unidentified Justice: --Again, though, apparently court of appeals, as Justice Stevens suggested earlier to Mr. Haskins, going on with that footnote 1,

"Therefore constitute this complaint as a constitutional challenge to the statute itself."

and not merely a procedural default.

Did they not?

Mr. Haskins: Again, I will try to respond to Justice Stevens.

I think that is somewhat in conflict with the statement on page 53 of the issue they framed.

They definitely assumed on page 53 of the Petition for Writ of Certiorari, that the statute was certainly presumptively valid.

And the judicial proceedings were valid--

Unidentified Justice: But really, all that means is that if you get to the merits of the statute, the burden is on the person challenging the statute to overcome the presumption of validity.

That's all that means.

Mr. Haskins: --Well, I think it could mean this also, Justice Stevens.

Of course, this case was dismissed on the complaint for lack of any federal jurisdiction under 1983.

What they are saying, as I understand it, due to the petitioner's constant disavowal that he is making any attack on the Virginia statutes, we must therefore assume the statute is valid.

Unidentified Justice: Well, if that's true you don't have to worry about state action or anything else.

They wouldn't have written this long opinion if that was their rationale.

I think he's saying it's presumptively a valid statute and therefore, you've got to have something more than the action of the clerk and the sheriff in order to say that it was a deprivation by the state.

And that is that half of the two-pronged inquiry.

Mr. Haskins: Well, I think this.

That you can assume the Virginia statute is valid, and you can assume, as the court of appeals points out, that there is state action involved by the Virginia court clerk and the Virginia sheriff.

Now, that does not mean or does not necessarily preclude that the defendants, the respondents, were not acting under color of state law if some way there was some sort of concerted action between as they call him the private actor/respondent, Edmondson Oil and Mr. Barbour, with a state official.

The statute can be perfectly valid, and they say that we assume it's a valid statute.

We assume that there is state action.

There's no question there was state action.

But a 1983 action requires a third element, and that element is that the private respondent act under color of state law to deprive the petitioner of a federal constitutional right.

Unidentified Justice: That's like analyzing the case in terms of the bribery of the judge in that case.

Mr. Haskins: In Dennis v. Sparks.

Unidentified Justice: That would be one theory and they reject that theory.

But I really don't think it's a fair reading of the complaint to say that he has alleged that kind of corruption in this case.

It seems to me, given the gloss that the court of appeals puts on it in its footnotes, it seems to me we should analyze the case as though he made a clear-cut attack on the constitutionality of the statute.

And then ask on that assumption, is there sufficient state involvement.

And shouldn't we also ask as to whether the court was proper in denying a motion to abstain?

Mr. Haskins: Yes, sir.

I think under this Court's decision in Carey v. Sugar, the New York case, that if the constitutionality of the Virginia statute, the substantive constitutionality is to be challenged, then the district court should have abstained and this case should have been referred back or dismissed--

Unidentified Justice: Why should he abstain?

There's no ambiguity in the Virginia statute, is there?

Mr. Haskins: --No, sir, I don't think there's any ambiguity in it.

I think the Virginia statute, as far as--

Unidentified Justice: Why would he abstain then?

I don't understand.

Mr. Haskins: --Well, he did not abstain, sir.

Unidentified Justice: I know, but you're suggesting now that he should have.

Mr. Haskins: No, I thought Justice Rehnquist said if the constitutionality of the statute was an issue.

Of course, when that issue came up, the petitioner clearly wrote the district court a memorandum saying he was not challenging the constitutionality, so what else could he do?

In the trial if the man says this is not an issue, Judge, I'm not challenging the statute--

Unidentified Justice: Once again, give the case of this Court that said that in order to maintain an action under 1983, you must attack the statute.

Mr. Haskins: --I don't know of any case that says that, Justice Marshall.

Unidentified Justice: Well, isn't that your point?

Mr. Haskins: No, sir.

My point is this: in order to maintain a 1983 action, you have got to file a complaint that states in some way clearly that the state has deprived the petitioner of a federal constitutional right.

In this case, if there's no--

Unidentified Justice: Cite me a case that says that.

Because 1983--

Mr. Haskins: --I think Flagg Brothers says that.

I think--

Unidentified Justice: --Well, quote it to me, let me see it.

Mr. Haskins: --On page 6 of my brief, the red brief, Justice Marshall,

"A plaintiff must meet two requirements to show a valid cause of action under 1983."

and this, of course, is from Flagg Brothers.

"The deprivation #"--

Unidentified Justice: I don't see any quote on this page at all.

Mr. Haskins: --Well, this is what Flagg Brother says.

Unidentified Justice: Well, I asked for the quote.

Well, with all respect to my colleague, Justice Marshall--

--Well, with all due respect to you, I have a right to ask the question.

Well, with all respect to you, I was just going to suggest that certainly, the requirement--

--Go right ahead, I don't want to delay anything.

--that the constitutional issue be raised--

--If he doesn't want to convince me, it's all right.

And you're suggesting I won't either.

[Laughter]

--at its earliest possible moment and preserved throughout, doesn't date from Flagg Brothers.

It dates from cases like Holbrook v. Chicago and cases that go back to the nineties and eighties, it is my recollection.

Mr. Haskins: Yes, sir, correct, sir.

This just came to mind.

Justice Marshall, I do have the direct quote.

It's on page 436 of the U.S. Reports, page 157, and the quote is this:

"A claim upon which relief may be granted to respondents against Flagg Brothers under 1983 must embody at least two elements."

"Respondents are first bound to show that they have been deprived of a right secured by the Constitution and the laws of the United States."

"They must secondly show that Flagg Brothers deprived them of this right acting under color of any statute of the state of New York."

And in footnote 4, Justice Rehnquist said on the same page,

"Even if there is state action."

--and I think this hits the nail on the head in this case...

"the ultimate inquiry in a Fourteenth Amendment case is of course whether that action constitutes a denial or deprivation by the state of rights that the amendment protects."

I think clearly, the petitioner in this case is basically alleging deprivation of his property by these malicious creditors, the respondents, not by the state of Virginia.

And for that reason, I think the district court and the court of appeals was correct in dismissing this complaint for lack of any 1983 jurisdiction.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Morrison?

ORAL ARGUMENT OF ROBERT L. MORRISON, JR., ESQ. ON BEHALF OF THE PETITIONER -- Rebuttal

Mr. Morrison: Yes, Your Honor.

To address the last point made by Mr. Haskins first, I would submit to the Court that the complaint clearly states what the plaintiff alleges; that the creditors maliciously and jointly with the state deprived him of his rights.

And that's what is alleged.

The Flagg Brothers opinion in footnote 10 specifically accepts that from the effect of that opinion, the pre-judgment seizure cases which this Court has decided in Fuentes, Lynch, Sniadach, North Georgia Finishing and in Mitchell.

Unidentified Justice: Mr. Morrison, you don't quarrel with the proposition, do you, that if one is attacking the constitutionality of a state statute, that issue must be raised at its earliest possible moment and preserved throughout the case?

Mr. Morrison: I think the issue has to be raised when the complaint is filed, Your Honor.

Unidentified Justice: And preserved?

Mr. Morrison: Preserved as best possible.

As I have said to the Court, the problem in the district court and in the court of appeals rose from perhaps my misapprehension of the holding in Monroe v. Pathe among others that action taken because of state authority and power, whether or not legal under state law, still amounts to state action under color of state law because the state's power and authority is what makes the act possible.

And that is exactly what has happened here.

The state's power and authority is what has made the deprivation possible; not the individual acts of the private defendants, taken outside of the context of the state.

The state provided... and under the decisions of this Court in Fuentes, the state statute effectively abdicates its control.

The state provided--

Unidentified Justice: Mr. Morrison, let me put it another way.

Could either have done it alone?

Mr. Morrison: --Could the state have done it alone?

The state could have done it alone if the state had the necessary pressing reasons that this Court has found in cases relating to health or drugs or cases like--

Unidentified Justice: This whole thing wouldn't have happened without the filing with the clerk.

Mr. Morrison: --No, sir.

It took them both to do it.

Unidentified Justice: Exactly.

Mr. Morrison: It took them both to do it, and the creditor could not have done it by itself without being subject to criminal penalties, because it had no self--

Unidentified Justice: Well, the state wouldn't grant a divorce, presumably, if no one asked it to.

Mr. Morrison: --Yes, Your Honor, I concede the point.

But the thing is that when the state grants a divorce, it does so after a hearing.

It does so as a neutral arbiter.

That's what is lacking here.

The state does not act as a neutral arbiter; the state comes in and immediately takes sides and freezes one man's complete livelihood and assets.

And does it under color of state law.

The creditor here acted with knowledge of the statute and with intent to take advantage of it, as this Court has found to be a requirement.

And he took advantage of it, and Mr. Lugar's assets--

Unidentified Justice: And certainly a divorce claimant or anybody else invoking the judicial process of the state, if he's trained in the law, is presumably invoking some state procedure that is recognized by the courts of that state.

Mr. Morrison: --Yes, sir, I have no quarrel with that.

I would also like to address the point that was discussed by Mr. Haskins concerning presumed validity of state judicial proceedings.

As I understand it, any act by the legislature is presumptively valid, no matter what attack is made on it until proven otherwise.

And I submit to the Court that Justice Stevens has hit the nail on the head there, that that is what the Fourth Circuit meant.

That has been my understanding of the presumption of validity of legislative enactments.

If the Court has no further questions, that's all I have.

Chief Justice Burger: Thank you, gentlemen, the case is submitted.