Charles Culbertson and Helen Culbertson, His Wife v. Alice Leland

528 F.2d 426 32 A.L.R.Fed. 414 Charles CULBERTSON and Helen Culbertson, his wife, Plaintiffs-Appellants, v. Alice LELAND et al., Defendants-Appellees. No. 73--1749. United States Court of Appeals, Ninth Circuit. Oct. 3, 1975. 1 Victor Aronow (argued), Mesa, Ariz., for plaintiffs-appellants. 2 Coit I. Hughes (argued), of Hughes, Hughes & Conlan, Phoenix, Ariz., for defendants-appellees. OPINION 3 Before ELY and CHOY, Circuit Judges, and WEIGEL, District Judge. * WEIGEL, District Judge: WEIGEL, District Jude: 4 The Arizona Innkeeper's Lien Statute authorizes the keeper of a hotel or lodging house to seize, without notice or judicial procedure, the personal property of a lodger who fails to pay rent. This appeal presents the question whether a private person acting under the authority of the statute does so under color of state law within the meaning of 42 U.S.C. § 1983 . 5 In September 1972, Helen and Charles Culbertson moved into a room in the New Windsor Hotel in Phoenix, Arizona, for which they agreed to pay twenty dollars per week. For several weeks they paid their rent on time, but in November they fell one week in arrears and were evicted by the hotel manager, Alice…

The Arizona Innkeeper’s Lien Statute authorizes the keeper of a hotel or lodging house to seize, without notice or judicial procedure, the personal property of a lodger who fails to pay rent. This appeal presents the question whether a private person acting under the authority of the statute does so under color of state law within the meaning of 42 U.S.C. § 1983 .

In September 1972, Helen and Charles Culbertson moved into a room in the New Windsor Hotel in Phoenix, Arizona, for which they agreed to pay twenty dollars per week. For several weeks they paid their rent on time, but in November they fell one week in arrears and were evicted by the hotel manager, Alice Leland. At eviction, she seized, as security for the unpaid rent, personal possessions of the Culbertsons which remained in the room. Leland was at no time an official of the State of Arizona. She sought no help from state officials and received none, except that a member of the Phoenix police department told her she had the right to hold her tenants’ belongings.

The Culbertsons sued in federal district court for the return of their possessions; for declaratory and injunctive relief against the provisions of…

(dissenting):

I respectfully dissent.

In Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973), cert. denied, 419 U.S. 1006 , 95 S.Ct. 325 , 42 L.Ed.2d 282 (1974), this court rejected a due process challenge to the self-help repossession provisions of the Uniform Commercial Code. A number of theories had been advanced to establish state action in the statutory authorization of repossession, each of which we rejected. Our discussion in Adams of each of these proposed grounds for finding state action is, with one exception, equally applicable to our consideration of Arizona’s innkeeper’s lien statute. That one exception is the “public function” analysis upon which the Supreme Court relied to invalidate racially discriminatory practices in political party primaries. Smith v. Allwright, 321 U.S. 649 , 64 S.Ct. 757 , 88 L.Ed. 987 (1944); Terry v. Adams, 345 U.S. 461 , 73 S.Ct. 809 , 97 L.Ed. 1152 (1953).

The Fifth Circuit relied on this public function analysis to find state action and invalidate a landlord’s lien in Hall v. Garson, 430 F.2d 430 (5th Cir. 1970). The court found that the action taken by the landlord, “the entry into another’s home and the…

(concurring):

I concur in the result reached by Judge Weigel in his carefully studied opinion. Since I cannot agree, however, with all that Judge Weigel has written, see infra n. 5, I have concluded that I should separately state my views.

Acting under the authority conferred by Arizona’s innkeeper’s lien statutes, Alice Leland seized clothing, food, medicines, and stereo equipment that belonged to her renters, the Culbertsons, in order to satisfy rent claimed by Leland to be unpaid. Leland owned no security interest in the seized items, nor did she possess any other form of contractual right thereto. Rather, after informing the Culbertsons that they were evicted from the $20 per week room in which they had been living, she indiscriminately seized and held all of the belongings that remained in the room. By summarily depriving the Culbertsons of their property, without their consent, in order to satisfy an alleged debt, Leland performed a function that, in my view, belongs only to the state. *433 The facts here presented are virtually identical to those in Hall v. Garson, 430 F.2d 430 (5th Cir. 1970), in which a landlady, acting pursuant to the Texas landlord’s lien statute,…