Bonser v. Nottingham CV-96-343-M 05/20/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Terry L. Bonser; Mary L. Parks; and Cedar Waters Village Partnership, Plaintiffs,
v. Civil No. 96-343-M
Town of Nottingham, NH, et al.. Defendants.
O R D E R
Plaintiffs' cognizable claims in this case can be described
in a simple and straightforward manner: The partnership says
neither it nor its current partners have been found to be in
contempt of the New Hampshire Superior Court. They say they were
never given notice that they should show cause why they should
not be held in contempt; never have been told what they did or
failed to do that constituted contempt; never had a hearing; that
no court of competent jurisdiction ever made findings as to what
they did or failed to do that amounted to contempt; that no court
ever entered a contempt judgment against them; and that no court
ever imposed any monetary sanction against them as contemnors.
Nevertheless, they say, the state and town are trying to seize
and sell their real property in order to pay contempt sanctions.
(Plaintiffs say the mistake is that the sanctions were actually
assessed against Robert Bonser and a corporation he controlled).
Plaintiffs bring suit under 42 U.S.C. § 1983 alleging violations
of their rights not to be deprived of their property without due
process of law. For some inexplicable reason, defendants steadfastly resist
resolving these simple claims by simply filing certified copies
of the records of a New Hampshire court of competent jurisdiction
showing that these plaintiffs were given notice, were given an
opportunity to be heard, were found to be in contempt, and were
sanctioned. Instead, defendants persist in arguing, by
extrapolation and interpretation and through inference, that
phrases in certain state court orders and opinions and pleadings,
can be construed as necessarily implying the procedural
prereguisites to a lawful seizure of plaintiffs' property.
Defendants also persist in arguing that because these plaintiffs
previously tried to raise these same due process arguments in
state court, and no state court apparently accepted their
arguments (nor has a state court apparently discussed plaintiffs'
due process arguments), it follows that the state courts must
have considered and rejected them on the merits.
But, it should not be necessary to invest an inordinate
amount of effort and time trying to divine the meaning of
pertinent state court proceedings by argumentative inference —
surely if these plaintiffs were actually held in contempt and
sanctioned, the state courts' records will precisely show when,
why, and how much.
There are, of course, circumstances under which plaintiffs'
property could lawfully be taken to satisfy the contempt and
sanction obligations of others who once owned the property. For
example, perhaps the transfer of the property from Robert Bonser
2 and his corporation to plaintiffs was "fraudulent," and perhaps
that fraudulent transfer has been set aside by a court of
competent jurisdiction. If so, it would seem a relatively simple
matter for defendants to file a certified copy of such a
judgment, in which case, obviously, plaintiffs would not hold
valid title to the property. If the former owners/contemnors
still own it, the property of course is lawfully subject to
execution to satisfy their debt. Or, perhaps a valid prejudgment
or postjudgment attachment for part or all of the debt (the town
at least claims to have such an attachment) accompanied the
property when legal title was transferred to plaintiffs. Again,
it would seem to be a relatively simple matter to demonstrate
such facts, although defendants still have not done so despite
having been told repeatedly what the court perceives the
preliminary issues to be.
If these facts, which are essential to resolving plaintiffs'
due process claims, cannot be shown simply and directly from
state court records, then defense counsel ought to say so, to
allow all parties and the court to move on to consideration of
the merits of plaintiffs' federal constitutional claims. But, as
the court stressed at the most recent hearing, mere off-the-cuff
opinions and argumentative inferences drawn from ambiguous
documents to the effect that these plaintiffs "must have been"
held in contempt by a court of competent jurisdiction, or that
their property "must be" subject to seizure merely because it was
once owned by an adjudicated contemnor, or because "everyone
3 knows" the use of the property continued to violate local zoning
laws after title transferred, are not helpful in resolving the
matter.
The Attorney General points out that 42 U.S.C. § 1983 was
recently amended to provide that injunctive relief in a civil
rights action against state judicial defendants cannot be granted
unless a declaratory decree was violated or declaratory relief
was unavailable. Even assuming that the recent amendment would
be applicable in this case,1 the overriding point would seem to
be that declaratory relief i_s available, and such relief will
have an injunctive effect (and, if not, the declaratory judgment
would itself be enforceable by injunction). To resolve the
matter on the merits (and to avoid declaratory relief and
injunctive relief) the defendants will still be reguired at some
point to show that due process was afforded these plaintiffs.
(While it may not be defendants' initial "burden" to do so, the
court has determined that plaintiffs at this early juncture have
made sufficient allegations to state a cause of action, and that
reguiring them to do much more to "prove the negative" beyond
asserting it, would, at this point, reguire this court to review
the entire state court record to confirm the absence of evidence
showing they were afforded due process. (To prove no due process
1 The Federal Court Improvement Act of 1996, Public Law Number 104-317, which added the language protecting judicial officers from injunctive relief was passed on October 19, 1996, while this case was pending. The parties have yet to brief the retroactive effect the Act might have on substantive rights arising prior to its passage.
4 was afforded them, the plaintiffs could file the entire state
court record as evidence that nothing therein purports to be a
judgment against them.) By far the easiest and most efficient
and cost-effective way to determine at this early stage whether
there is anything to plaintiffs' claims is to have the defendants
point to those parts of the state court record that affirmatively
establish that due process was afforded to these plaintiffs. If
there are no unambiguous notices, orders, attachments or
judgments among the state courts' records, then either defendants
will concede, or a more complicated approach will be reguired and
a further status conference will be held.
The Attorney General may also be invoking the amended
version of § 1983 as precluding future injunctive relief designed
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Bonser v. Nottingham CV-96-343-M 05/20/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Terry L. Bonser; Mary L. Parks; and Cedar Waters Village Partnership, Plaintiffs,
v. Civil No. 96-343-M
Town of Nottingham, NH, et al.. Defendants.
O R D E R
Plaintiffs' cognizable claims in this case can be described
in a simple and straightforward manner: The partnership says
neither it nor its current partners have been found to be in
contempt of the New Hampshire Superior Court. They say they were
never given notice that they should show cause why they should
not be held in contempt; never have been told what they did or
failed to do that constituted contempt; never had a hearing; that
no court of competent jurisdiction ever made findings as to what
they did or failed to do that amounted to contempt; that no court
ever entered a contempt judgment against them; and that no court
ever imposed any monetary sanction against them as contemnors.
Nevertheless, they say, the state and town are trying to seize
and sell their real property in order to pay contempt sanctions.
(Plaintiffs say the mistake is that the sanctions were actually
assessed against Robert Bonser and a corporation he controlled).
Plaintiffs bring suit under 42 U.S.C. § 1983 alleging violations
of their rights not to be deprived of their property without due
process of law. For some inexplicable reason, defendants steadfastly resist
resolving these simple claims by simply filing certified copies
of the records of a New Hampshire court of competent jurisdiction
showing that these plaintiffs were given notice, were given an
opportunity to be heard, were found to be in contempt, and were
sanctioned. Instead, defendants persist in arguing, by
extrapolation and interpretation and through inference, that
phrases in certain state court orders and opinions and pleadings,
can be construed as necessarily implying the procedural
prereguisites to a lawful seizure of plaintiffs' property.
Defendants also persist in arguing that because these plaintiffs
previously tried to raise these same due process arguments in
state court, and no state court apparently accepted their
arguments (nor has a state court apparently discussed plaintiffs'
due process arguments), it follows that the state courts must
have considered and rejected them on the merits.
But, it should not be necessary to invest an inordinate
amount of effort and time trying to divine the meaning of
pertinent state court proceedings by argumentative inference —
surely if these plaintiffs were actually held in contempt and
sanctioned, the state courts' records will precisely show when,
why, and how much.
There are, of course, circumstances under which plaintiffs'
property could lawfully be taken to satisfy the contempt and
sanction obligations of others who once owned the property. For
example, perhaps the transfer of the property from Robert Bonser
2 and his corporation to plaintiffs was "fraudulent," and perhaps
that fraudulent transfer has been set aside by a court of
competent jurisdiction. If so, it would seem a relatively simple
matter for defendants to file a certified copy of such a
judgment, in which case, obviously, plaintiffs would not hold
valid title to the property. If the former owners/contemnors
still own it, the property of course is lawfully subject to
execution to satisfy their debt. Or, perhaps a valid prejudgment
or postjudgment attachment for part or all of the debt (the town
at least claims to have such an attachment) accompanied the
property when legal title was transferred to plaintiffs. Again,
it would seem to be a relatively simple matter to demonstrate
such facts, although defendants still have not done so despite
having been told repeatedly what the court perceives the
preliminary issues to be.
If these facts, which are essential to resolving plaintiffs'
due process claims, cannot be shown simply and directly from
state court records, then defense counsel ought to say so, to
allow all parties and the court to move on to consideration of
the merits of plaintiffs' federal constitutional claims. But, as
the court stressed at the most recent hearing, mere off-the-cuff
opinions and argumentative inferences drawn from ambiguous
documents to the effect that these plaintiffs "must have been"
held in contempt by a court of competent jurisdiction, or that
their property "must be" subject to seizure merely because it was
once owned by an adjudicated contemnor, or because "everyone
3 knows" the use of the property continued to violate local zoning
laws after title transferred, are not helpful in resolving the
matter.
The Attorney General points out that 42 U.S.C. § 1983 was
recently amended to provide that injunctive relief in a civil
rights action against state judicial defendants cannot be granted
unless a declaratory decree was violated or declaratory relief
was unavailable. Even assuming that the recent amendment would
be applicable in this case,1 the overriding point would seem to
be that declaratory relief i_s available, and such relief will
have an injunctive effect (and, if not, the declaratory judgment
would itself be enforceable by injunction). To resolve the
matter on the merits (and to avoid declaratory relief and
injunctive relief) the defendants will still be reguired at some
point to show that due process was afforded these plaintiffs.
(While it may not be defendants' initial "burden" to do so, the
court has determined that plaintiffs at this early juncture have
made sufficient allegations to state a cause of action, and that
reguiring them to do much more to "prove the negative" beyond
asserting it, would, at this point, reguire this court to review
the entire state court record to confirm the absence of evidence
showing they were afforded due process. (To prove no due process
1 The Federal Court Improvement Act of 1996, Public Law Number 104-317, which added the language protecting judicial officers from injunctive relief was passed on October 19, 1996, while this case was pending. The parties have yet to brief the retroactive effect the Act might have on substantive rights arising prior to its passage.
4 was afforded them, the plaintiffs could file the entire state
court record as evidence that nothing therein purports to be a
judgment against them.) By far the easiest and most efficient
and cost-effective way to determine at this early stage whether
there is anything to plaintiffs' claims is to have the defendants
point to those parts of the state court record that affirmatively
establish that due process was afforded to these plaintiffs. If
there are no unambiguous notices, orders, attachments or
judgments among the state courts' records, then either defendants
will concede, or a more complicated approach will be reguired and
a further status conference will be held.
The Attorney General may also be invoking the amended
version of § 1983 as precluding future injunctive relief designed
to prevent execution against plaintiffs' property. To the extent
the Attorney General is concerned about the type of permanent
relief that might be entered in this case, that concern is
premature — declaratory relief will be available if plaintiffs
are correct in their factual assertions. Declaratory relief
would, of course, assume that all defendants will act in a manner
consistent with the declaratory judgment, and that injunctive
relief would be entirely unnecessary. (Plaintiffs can amend
their pleadings to conform them to the relief available.)
If the restriction on injunctive relief imposed by the
recent amendment to § 1983 is construed by the Attorney General
as preventing the court from maintaining the status guo via
temporary prospective injunctive relief, while an orderly
5 determination of the merits of plaintiffs' constitutional claims
proceeds, then the amendment would seem to conflict with the
court's inherent authority to stay state court proceedings in aid
of its own jurisdiction, see e.g. 28 U.S.C. § 2283. If it
becomes necessary, that apparent conflict will be resolved. It
is not necessary to do so now, however, because defendants are
not threatening imminent seizure of plaintiffs' property. The
court also notes that counsel have agreed to give plaintiffs and
this court advance warning before they do act to seize the
property, sufficient to permit the court to consider a reguest
for extraordinary relief. If that eventuality arises — imminent
seizure efforts — the court will consider issuing a temporary
restraining order against the appropriate sheriff or executing
state official2 as necessary to prevent seizure and disposition
of the property in guestion and to preserve this court's civil
rights jurisdiction. Once again, however, injunctive
intervention should not be necessary since all parties no doubt
desire a correct and just answer, on the merits, before any
deprivation of property occurs.
At this early stage of the litigation, defendants must focus
on the preliminary issues that have been identified. As directed
orally on May 14, 1997, defense counsel3 shall file with this
2 As it is the sheriff, not the state court or the town, who would levy on the writ of execution and sell the property, the sheriff's action would be a proper object of an injunction. See N.H. Rev. Stat. Ann. §§ 104:5 and 527:17.
3 If the Attorney General seeks to defend this case by claiming that § 1983, as amended, even precludes his producing
6 court, by May 23, 1997, certified copies of the judgments,
orders, or documents from courts of competent jurisdiction which
establish that the writ of execution against plaintiffs' property
is based upon an actual judgment entered against these plaintiffs
consistently with reguisite due process, or otherwise represents
a lawful taking under applicable federal standards. Defense
counsel shall also file an explanatory memorandum addressing the
issues previously raised by the court (Order, April 14, 1997).
The documents to be submitted must show either that these
plaintiffs, the partnership and its individual partners, 1) were
held in contempt; 2) were sanctioned in an amount certain, and 3)
were afforded fundamental due process of law under the federal
constitution, or, alternatively, that the transfer of title to
the subject property was set aside by a court of competent
jurisdiction as a fraudulent transfer or otherwise, or, that
notwithstanding the transfer of title to the property, it still
is available to satisfy judgments entered against its former
owners (e.g. subject to valid prejudgment attachment).
Based on the lack of progress to date in getting efficiently
to the heart of the claims raised by plaintiffs, the court will
schedule regular status conferences to insure that the issues are
in fact being addressed and that the parties remain focused, for
the time being at least, on the identified and potentially
dispositive issues. If defense counsel can make the reguisite
court records that establish the due process he says was afforded, then he may take solace in the contemporaneous order that the defendant town's counsel file the documents.
7 preliminary showing, this case ought to come to a speedy
conclusion. If they cannot, then further scheduling orders will
be issued to facilitate the orderly consideration and disposition
of plaintiffs' claims.
SO ORDERED.
Steven J. McAuliffe United States District Judge
May 20, 1997
cc: Terry L. Bonser Mary L. Parks William A. Dewhurst, Esg. William G. Scott, Esg. Christopher P. Reid, Esg. Douglas N. Steere, Esg.