Gil LANDERS, d/b/a Big Daddy‘s Pawn Shop v. Ken JAMESON
03-114
Supreme Court of Arkansas
December 4, 2003
132 S.W.3d 741
Cross, Gunter, Witherspoon & Galchus, P.C., by: M. Stephen Bingham, for appellee.
Hyden, Miron & Foster, PLLC, by: Lyle D. Foster and Danny W. Broaddrick, for amicus curiae Arkansas Pawnbrokers’ Association.
The pertinent facts are not in dispute. In June 1998, Jameson noticed that a ring and two bracelets were missing from his home in Little Rock. In July 1998, he reported that the jewelry was missing to the Little Rock Police Department, which located similar bracelets at the Pawn Shop in Little Rock and placed a hold on them so that they could not be sold or released. The Police Department notified Jameson, and he subsequently identified the jewelry as his. On November 5, 1998, Jameson provided the Pawn Shop with a sworn affidavit in which he averred that two bracelets pawned at Appellant‘s shop had been wrongfully taken from his house. The Pawn Shop refused to return the bracelets, which caused Jameson to file an action in Little Rock Municipal Court (now District Court) on November 10, 1998.
On February 2, 1999, Jameson appeared pro se, and the Pawn Shop appeared with its attorney at the municipal court hearing. Following the hearing, the municipal court issued its judgment on February 5, 1999, in which it found, by a preponderance of the evidence, that the jewelry in the Pawn Shop‘s possession was owned by Jameson; that the items were pawned by Linda Stewart, an employee of his housekeeper; and that the items were taken from his home without permission. The court ordered that the items be returned to Jameson after the Police Department released its hold.
The Pawn Shop appealed the judgment to Pulaski County Circuit Court. Jameson also filed a demand for attorney‘s fees and costs with the circuit court. He described the legal history of the case and quoted
In February 1999, the Police Department released its hold on the jewelry. On May 24, 2000, the court of appeals held in an unpublished opinion that the circuit court had clearly erred in failing to find that Jameson was the true owner of the jewelry and in not awarding costs and attorney‘s fees to Jameson. Jameson v. Landers, CA 99-1273 (Ark. App. May 24, 2000) (Landers I). The court of appeals further held that Ms. Stewart was jointly and severally liable for an amount equal to the value of the jewelry at the time of the conversion and reversed the circuit court‘s judgment and remanded the case to that court.
On May 30, 2000, Jameson filed a confirmation of attorney‘s fees and costs in circuit court pursuant to
The Pawn Shop appealed, and on April 3, 2002, the court of appeals issued an opinion not designated for publication in which it found that the circuit court‘s conclusion on remand that the court of appeals had implicitly held the statutes to be constitutional was clearly erroneous. Landers v. Jameson, CA 01-269 (Ark. App. April 3, 2002) (Landers II). Because of this, the court of appeals reversed and remanded the issue of the constitutionality of
On April 12, 2002, the Pawn Shop filed a motion to release the supersedeas bond in the amount of $16,000.00 posted by the Pawn Shop pending appeal. Also on that date, the Pawn Shop confirmed to the circuit court that, pursuant to
On June 12, 2002, the Attorney General‘s office issued a letter that it had reviewed the Pawn Shop‘s pleadings and said it declined to intervene to defend the constitutionality of the statutes at issue. On July 1, 2002, Jameson moved for summary judgment in circuit court and claimed that the court of appeals remanded this case so that the circuit court could issue a ruling on the Pawn Shop‘s challenge to the statutes’ constitutionality and the Pawn Shop‘s failure to comply with
On July 2, 2002, the circuit court ordered that the supersedeas bond be released and returned to the Pawn Shop. On July 16, 2002, the Pawn Shop responded to Jameson‘s motion for summary judgment and urged the circuit court to allow the case to go forward as directed by the court of appeals. The Pawn Shop further requested that it be awarded $500.00 in attorney‘s fees for its response to Jameson‘s motion for summary judgment.
On August 27, 2002, the Pawn Shop moved for summary judgment on the grounds that the statutes were unconstitutional. On October 24, 2002, a hearing on the two motions for summary judgment took place. Jameson asserted that the burden was on the Pawn Shop to obtain a ruling relative to the constitutional challenge and that, by failing to comply with
On October 30, 2002, the circuit court entered its order and made the following findings:
- The Pawn Shop sufficiently complied with
§ 16-111-106 , in notifying the Attorney General that it was contesting the constitutionality of§§ 18-27-202 and-203 . - The Pawn Shop has standing to mount the constitutional challenge.
- The statutes provide for a hearing before deprivation of the Pawn Shop‘s property interest.
- The statutes in question are constitutional.
- The award of attorney‘s fees is held in abeyance, pending appeal.
I. Law of the Case
We first address an issue that is not raised by either party in this appeal: law of the case. We have described the rule of law of the case as follows:
The general rule is that, where the pleadings and issues are substantially the same, all questions which were actually presented or which could have been presented in the first appeal are barred in the second appeal. Some jurisdictions hold that only questions actually decided are barred from subsequent consideration. But Arkansas follows the general rule. We have said in a number of cases that an argument which could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case.
Alexander v. Chapman, 299 Ark. 126, 127-28, 771 S.W.2d 744, 745 (1989) (internal
Finally, we point out that our reliance on the law of the case doctrine does not conflict with the general proposition that when a case is reversed and remanded for a new trial, all of the issues are opened anew. In cases in which there is a broad remand, we allow a party to amend its pleadings as necessary. Here, there was no amendment of pleadings. The law of the case doctrine prevents consideration of an argument that could have been made at the first trial.
299 Ark. at 131, 771 S.W.2d at 747 (internal citations omitted). Though neither party raised the law-of-the-case issue and the circuit court did not rule on it, we can affirm the circuit court for a different reason. See Alexander v. Chapman, supra.
To reiterate the pertinent facts, after the municipal court entered judgment on February 5, 1999, and found that Jameson was the true owner of the jewelry and that the jewelry should be released, the Pawn Shop appealed that judgment to circuit court. On June 4, 1999, the Pawn Shop‘s appeal was heard in circuit court as well as Jameson‘s demand for attorney‘s fees and costs. In response to Jameson‘s demand for fees and costs, the Pawn Shop‘s counsel argued that
Jameson appealed the circuit court‘s judgment to the court of appeals, and that judgment was reversed in Landers I. Again, the issue of the constitutionality of the statutes was not raised or mentioned. The court of appeals reversed on the merits in Landers I and held that the evidence overwhelmingly demonstrated that the jewelry belonged to Jameson. In a petition for rehearing, the Pawn Shop raised the constitutional issue for the first time in that appellate court. The court of appeals denied the petition without an opinion.
In Landers II, the court of appeals observed that the constitutional issue had not been decided by the circuit court in 1999; nor was it an issue on appeal in Landers I in 2000, until rehearing. Also, in Landers II, the court of appeals observed that it was only after Landers I and the first remand to circuit court that attorney‘s fees and the constitutionality of the statutes were at issue.
Counsel for the Pawn Shop argued, following the first remand to circuit court after Landers I, that
The issue now confronting us is whether the Pawn Shop is foreclosed from raising the constitutional issue at this time, because it did not seek a ruling on that issue before the circuit court in the appeal from municipal court in 1999 and raise it to the court of appeals in Landers I. We conclude that law of the case should not foreclose this court from deciding the constitutional issue. It is true that this court has said time and again that all issues raised or that could have been raised in a first appeal cannot be raised in a second appeal. But this court has never extended the doctrine to require a prevailing party at the trial level to also obtain a ruling on a constitutional issue that may be an alternative reason to decide the matter in that party‘s favor. Nor has this court required that same prevailing party to cross appeal as an appellee on that same non-essential constitutional ground, if and when the matter is appealed to an appellate court.
This court has a well-settled principle that we will avoid a decision on the constitutionality of a state statute, when resolving the constitutional issue is not essential to deciding the case. See, e.g., Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996); McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977); Board of Equal. v. Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211 (1972). We see no reason why this same principle should not apply to the circuit court‘s determination in 1999 in the instant case. The court ruled in favor of the Pawn Shop on the ownership point, and it was not essential for the court to rule on the constitutionality of the pawnshop statutes. Furthermore, when the constitutionality of a statute is challenged, the Attorney General of this state must be notified and is entitled to be heard.
Early on, this court said in Railway Company v. Smith, 60 Ark. 221, 240, 29 S.W. 752, 754 (1895):
While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. . . . It is both proper and more respectful to a co-ordinate department to discuss constitutional questions only when that is the very lis mota. . . . In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable.
We are aware that this court has said that the law-of-the-case doctrine extends to issues of constitutional law. See, e.g., Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976); Feldman v. State Board of Law Examiners, 256 Ark. 384, 507 S.W.2d 508 (1974); Miller Lumber Company v. Floyd, 169 Ark. 473, 275 S.W. 741 (1925). In each of the cited cases,
Accordingly, we hold that law of the case is not an alternative reason to affirm this case.
II. Constitutional Argument
We turn then to the Pawn Shop‘s constitutional argument. Briefly, it contends that
The Pawn Shop further describes the Hobson‘s choice it is forced to make. The Little Rock Police Department put a “hold” on the jewelry in July 1998, thereby freezing the jewelry from sale or release. If the Pawn Shop releases the property to an alleged true owner who presents an affidavit of possession, the Pawn Shop violates the police directive. If it does not release the property, it is subject to attorney‘s fees and costs incurred by the true owner in successful litigation.
We initially acknowledge the longstanding principles we invoke when a constitutional challenge to a legislative act has been mounted. We have said:
All statutes are presumed constitutional and we resolve all doubts in favor of constitutionality. The party challenging a statute‘s constitutionality has the burden of proving that the act lacks a rational relationship to a legitimate objective of the legislature under any reasonably conceivable set of facts.
Ester v. National Home Ctrs., Inc., 335 Ark. 356, 364-65, 981 S.W.2d 91, 96 (1998) (internal citations omitted). We have further said:
If it is possible to construe a statute as constitutional, we must do so. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable.
Reinert v. State, 348 Ark. 1, 4, 71 S.W.3d 52, 54 (2002) (internal citations omitted). In addition, we have added:
It is not our role to discover the actual basis for the legislation. We merely consider whether there is any rational basis which demonstrates the possibility of a deliberate nexus with state objectives
so that the legislation is not the product of arbitrary and capricious government purposes. If we determine that any rational basis exists, the statute will withstand constitutional challenge.
Jegley v. Picado, 349 Ark. 600, 634, 80 S.W.3d 332, 351 (2002) (emphasis in the original, internal citations omitted).
We review questions of statutory interpretation de novo, because it is this court‘s responsibility to determine what a statute means. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). In doing so, we look to the statutes to assess their ordinary and plain meaning. See Nelson v. Timberline Int‘l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998).
The statutes at issue read as follows:
As used in this subchapter, unless the context otherwise requires, “pawnbroker” means and includes any person, firm, or corporation, or an agent thereof, who is engaged in the business of lending money upon the security of articles of personal property and who retains possession of the articles until the loan is repaid.
. . .
When any pawnbroker in this state shall, in good faith or otherwise, acquire, by purchase, pawn, gift, or otherwise, any article of personal property which has been stolen from the owner thereof, the pawnbroker shall return the personal property to the true owner thereof upon his request and the execution of his affidavit of possession.
. . .
(a) If any pawnbroker shall fail or refuse to return any property to the true owner thereof when requested to do so by him as provided in
§ 18-27-202 , it shall be necessary for the true owner to resort to legal action to recover the property.(b) In the event that the true owner is successful in a legal action, the defendant pawnbroker shall be required to pay all reasonable expenses incurred by the owner in recovering the property, including court costs and attorneys’ fees, and any damages suffered by the true owner as a result of the pawnbroker failing or refusing to return the property to the true owner when so requested by him.
The essence of the Pawn Shop‘s contention is that it has been denied procedural due process by this statutory scheme. The United States Supreme Court has enumerated three factors for evaluating a claim relating to procedural due process:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Gov-ernment‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). We first examine the Pawn Shop‘s interest in the jewelry at issue.
a. Property Interest
The Pawn Shop directs our attention to
It is clear to us that the Pawn Shop was seeking to protect its security or lien interest in the jewelry at the time Jameson made a claim on the pawned property as the true owner. Moreover, as the possessor of the pawned jewelry, the Pawn Shop had a possessory property interest entitled to due process protection. See Fuentes v. Shevin, supra. We conclude that the interest acquired by the Pawn Shop in the pawned goods constitutes a sufficient property interest to warrant due process protection. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935) (a lien is “property” within the ambit of the Fourteenth Amendment).
b. State Action
The Pawn Shop next contends that the involvement of the Little Rock Police Department, working with Jameson, deprived the business of the pawned property, and this constituted state action. We agree.
In Leonards v. E.A. Martin Machinery Co., 321 Ark. 239, 900 S.W.2d 546 (1995), the issue was whether the repairmen‘s lien statutes required state action for enforcement. The owner of a bulldozer contended that the repairmen‘s lien statutes violated procedural due process under the United States Constitution, because they did not provide the owner a right to a hearing and other remedies for obtaining possession prior to sale. This court held that a private party‘s use of state-sanctioned private remedies or procedures did not rise to the level of state action. We said:
Thus, we observe a significant distinction between cases involving actions taken by or with the overt assistance of state officials and those that do not involve any action or assistance by state officials. The former class of cases may include, among others, procedures for attachment or execution of a judgment as those procedures necessarily require state action by a judge or sheriff or both. For example, in an attachment case, a creditor must first obtain a writ of attachment from a court and then have that writ executed by a sheriff. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). The latter class of cases may include cases such as the instant one where no action by a state official was taken inasmuch as Martin Machinery [the repairman] asserted its possessory lien pursuant to statute, but used no assistance from any state official in so doing. See, e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978).
Leonards, 321 Ark. at 244, 900 S.W.2d at 549-50.
With respect to a due process violation under the Arkansas Constitution, we said the following in Leonards:
When engaging in state due process analysis, this court has used a balancing test of competing interests somewhat similar to the federal test enumerated in Mathews v. Eldridge. Consistent therewith, for purposes of determining whether one has been deprived of property in violation of the Arkansas Constitution‘s due process provision, article 2, § 8 , we adopt the analysis of state action as enunciated in the federal context by Lugar [v. Edmondson Oil Co.], 457 U.S. at 937. Two requirements, therefore, must be met before we will find state action:
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.
Leonards, 321 Ark. at 245-46, 900 S.W.2d at 500-51 (internal citations omitted). We concluded by holding that under either the state or federal constitution, no state official was involved in asserting a possessory lien under the repairmen‘s lien statutes. Thus, there was no state action.
The facts of the instant case are entirely different. Under the facts of this case, the Little Rock Police Department found the stolen jewelry, placed a hold on it, and alerted Jameson to its whereabouts on July 30, 1998. Jameson relied on the Department to find the jewelry and so advise him in order that he could assert his claims under the statutes. This joint participation between the Little Rock Police Department and Jameson in depriving the Pawn Shop of the use of the jewelry is sufficient for us to conclude that state action was involved. See Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Contrary to the dissent‘s protest that this opinion casts doubt on all police seizures and is breaking new ground, the opinion in reality, adheres to the precedent of both this court and the United States Supreme Court regarding joint participation and state action in civil cases where a property interest is in dispute.
c. Erroneous Deprivation of Property
The crux of the Pawn Shop‘s appeal centers on its contention that the police department‘s “hold” on the property in July 1998 coupled with the alleged true owner‘s affidavit of possession effectively tied up the pawned property and deprived the Pawn Shop of its use without any adjudication of ownership by a court of law.
We emphasize that we do not consider the police “hold,” in itself, to be the issue in this case. Pawnshop records are required to be kept and made available to law enforcement agencies upon request to aid in criminal investigations. See
Jameson answers the Pawn Shop‘s claim with the same retort that was noted in the circuit court‘s judgment. The Pawn Shop
The Pawn Shop contends that the United States Supreme Court‘s decision in Fuentes v. Shevin, supra, and this court‘s decision in McCrory v. Johnson, supra, decide this case. In Fuentes, the Court addressed whether Florida and Pennsylvania statutes “authorizing the summary seizure of goods or chattels in a person‘s possession under a writ of replevin” were constitutional under the Fourteenth Amendment‘s “guarantee that no State shall deprive any person of property without due process.” 407 U.S. at 69. See also United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (absent exigent circumstances, due process requires notice and a hearing to owner prior to civil forfeiture of the owner‘s home following a drug conviction). The statutes in question provided for the “issuance of writs ordering state agents to seize a person‘s possessions, simply upon the ex parte application of any other person who claims a right to them and posts a security bond.” 407 U.S. at 69-70. The Court stated that the statutes in question failed to provide for notice to the possessor or for the opportunity to challenge “the seizure at any kind of prior hearing.” 407 U.S. at 70. The Supreme Court held that these procedures violated the Fourteenth Amendment‘s guarantee of due process, because they failed to provide a meaningful notice and opportunity for a hearing.
In McCrory v. Johnson, supra, the issue was the constitutionality of this state‘s prejudgment attachment procedures. Under the then-existing statutes, prejudgment attachment of a debtor‘s personal property could occur without prior notice or a prompt hearing before a court. We applied a balancing test in McCrory and weighed the burden on the state‘s judiciary to conduct prompt, pre-attachment hearings against the risk of erroneous deprivation of a debtor‘s personal property interests. We concluded that the risk to the debtor outweighed the burden caused by additional procedures in court and struck down our pre-attachment code provisions, as violative of procedural due process.
The dilemma facing this court is whether Fuentes and McCrory are so analogous to the instant case that
The Pawn Shop argues that it was required under
In McCrory v. Johnson, supra, we employed a balancing test to resolve the issue. Using a similar analysis in the instant case, we balance the burden on the judiciary in determining ownership before a third party is entitled to the pawned property against the risk that a pawnbroker could be erroneously deprived of pledged property by a non-meritorious claim or false affidavit. As in McCrory, we conclude that the risk of erroneous deprivation of property and the benefits that would accrue from additional judicial safeguards afforded to pawnbrokers like the Pawn Shop substantially outweigh the resulting burden on the judiciary.
Other jurisdictions have wrestled with similar issues. In Florida Pawnbrokers & Secondhand Dealers Ass‘n, Inc. v. City of Fort Lauderdale, 699 F. Supp. 888 (S.D. Fla. 1988), the issue, in a
While the issue of whether a police “hold” is a seizure is not before us, we have no doubt that the Pawn Shop‘s property interest was impaired by the statutory scheme provided under
We reiterate that it is not our intention in this opinion to undermine the authority of law enforcement agencies to place a “hold” on pawned property that matches the description of stolen property. Rather, we are holding that
Because we hold that
Reversed and remanded.
CORBIN and HANNAH, JJ., dissent.
DONALD L. CORBIN, Justice, dissenting. The majority holds that
In the first place, I disagree with the majority‘s conclusion that the Pawn Shop had an enforceable interest in the stolen property, even as against the true owner. In my opinion, this conclusion conflicts with this court‘s well-established law that a purchaser of stolen property, even if he acts in good faith, acquires no interest in the property against the true owner. As far back as 1853, in Phelan v. Dalson, 14 Ark. 79, this court recognized this principle:
[I]t is clear that where property has been obtained from the owner by a felonious act, his unqualified ownership is not in the least changed, and he may peaceably take it, in whose hands soever he may find it.
Id. at 82-83 (emphasis added) (citing Long on Sales, page 166-68, and cases cited therein). See also Russell v. Brooks, 92 Ark. 509, 122 S.W. 649 (1909).
This principle was reinforced in Eureka Springs Sales Co. v. Ward, 226 Ark. 424, 290 S.W.2d 434 (1956), which held that the appellant was liable in conversion to the true owner for selling stolen cattle. In so holding, this court observed:
The general rule — as regards all personal property except money and negotiable paper — is, that a purchaser from a thief acquires no title against the true owner, in the absence of limitations and estoppel (and neither of these is involved in this case).
Id. at 427, 290 S.W.2d at 436 (emphasis added). See also Superior Iron Works v. McMillan, 235 Ark. 207, 357 S.W.2d 524 (1962) (holding that this state‘s law is clear that title to stolen property remains in its rightful owner). This court then went on to cite the above holding in Phelan, as well as the following black-letter law:
Even though such a purchaser may be treated as having title and the right to their possession as against everyone but the rightful owner, a sale by the thief or by any person claiming under the thief does not vest any title in the purchaser as against the owner, though the sale was made in the ordinary course of trade and the purchaser acted in good faith.
Eureka Springs Sales, 226 Ark. at 428, 290 S.W.2d at 436-37 (emphasis added) (quoting 42 Am. Jur. 227).
More recently, our court of appeals has reiterated this legal principle. In Midway Auto Sales v. Clarkson, 71 Ark. App. 316, 318, 29 S.W.3d 788, 789-90 (2000), the court of appeals cited this court‘s decision in Eureka Springs Sales as standing for the proposition that “[a]bsent exigent circumstances, one who purchases from a thief acquires no title as against the true owner.” See also Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003); Beverage Prods. Corp. v. Robinson, 27 Ark. App. 225, 769 S.W.2d 424 (1989).
The majority omits any mention of these holdings and, instead, relies on cases from other jurisdictions. In my opinion, those cases are factually distinguishable, in that they involve deprivations of the pawnshops’ property interests by the police or other governmental entities, not by the true owner. Only one of the cases cited, Rassner v. Federal Collateral Society, Inc., 299 Mich. 206, 300 N.W. 45 (1941), involved the true owner attempting return of the property. Even there, however, the government action was involved, in that a search warrant was issued authorizing immediate seizure of the stolen property by the police. The pawnshops in those cases were entitled to due process prior to being deprived of the property because their right to possession was superior as against everyone in the world, including the police, but the rightful owner.
The distinction I make based on whom is seeking the return of the property was also made in two of the cases that the majority cites. In Wolfenbarger v. Williams, 774 F.2d 358 (10th Cir. 1985), the pawnbroker, Wolfenbarger, brought suit against three police officers, the city‘s police department, the city itself, and the prosecuting attorney and his assistant prosecutor. The pawnbroker alleged that the defendants had violated her due-process rights by seizing allegedly stolen property from her without first affording her a hearing. In ruling in favor of the pawnbroker, the Tenth Circuit acknowledged Oklahoma law that, like ours, provided that (1) no one can confer a better title than he has, and (2) since the true owner of property cannot be divested of his or her ownership by a thief, “even an honest pawnbroker cannot hold stolen property as against the true owner.” Id. at 361 (emphasis added) (citing Adkisson v. Waitman, 202 Okla. 309, 213 P.2d 465 (1949)). These general principles did not mean that the pawnbroker had no constitutionally protected rights in the property as against the government defendants.
The Wolfenbarger court did not stop with this analysis. It went on to implicitly hold that although the pawnbroker had an enforceable property interest against the government defendants, she would not have had an enforceable interest in the possession of stolen property against the true owner. This conclusion is apparent from the court‘s discussion of the Oklahoma Supreme Court‘s holding that even one who acquires stolen property from a thief could not hold the property against the true owner, but such purchaser “has a ‘qualified possessory interest’ and has ‘lawful possession against all the rest of the world.’ ” Id. at 361 (quoting Snethen v. Oklahoma State Union of the Farmers Edu. & Coop. Union, 664 P.2d 377, 381 (Okla. 1983)). The court then recited the Oklahoma Supreme Court‘s distinction of “legal” and “lawful” property interests:
A legal interest is enforceable against the whole world. A good-faith purchaser for value acquires an interest that is lawful and enforceable against all the world but the legal owner. Although it is only a qualified possessory interest, it is lawful and enforceable to a very large extent.
Id. at 362 (emphasis added) (quoting Snethen, 664 P.2d at 381). Based on this discussion, I believe that had the dispute
In another case cited by the majority, Wacksman v. Harrell, supra, the Ohio Supreme Court invalidated city rules allowing the police to sequester and seize allegedly stolen property from a pawnbroker without a proper and valid warrant. In so holding, however, the court noted that “[i]t is well established that one who purchases or acquires property from a thief in good faith has a right to the possession thereof against everyone except the rightful owner.” Id. at 340, 189 N.E.2d at 148 (citations omitted). The court also noted that should the pawnbroker wish to contest the alleged true owner‘s title to the property, “the pawnbroker is entitled to test ownership and possessory rights in a civil action if he so elects.” Id. at 342-43, 189 N.E.2d at 150.
In the present case, it is the property‘s true owner, not the government, that seeks return of the property from the Pawn Shop. Under our long-standing case law, the Pawn Shop cannot acquire any interest in stolen property, even if it purchased the property in good faith, as against the true owner. I would agree with the majority‘s holding that the Pawn Shop was entitled to due process based on its possessory interest had the issue been the Pawn Shop‘s interest versus that of the police. However, because the Pawn Shop cannot acquire any interest, by possession or title, in the stolen property as against the true owner, there is no property interest for which due process would apply.
The second point on which I dissent is from the majority‘s conclusion that Appellee Jameson is a state actor due to his “joint participation” with the police in attempting to have his property returned. Apparently, this joint participation results from Jameson‘s actions in (1) reporting the theft of his property to the police, and (2) relying on the police to find the property and then alert him when it was found. Under this holding, any citizen who files a police report and then expects the police to do its job automatically becomes a state actor, for purposes of determining whether procedural due process is required. The implications of this holding are obviously far-reaching.
Finally, I disagree with the majority‘s conclusion that sections
To the contrary, Jameson‘s affidavit apparently had no impact on the Pawn Shop‘s interest, given the fact that it continued to possess the property. In reality, both the police‘s hold and Jameson‘s affidavit had no more impairing effect than a pretrial temporary restraining, which could have legitimately been issued by any court to maintain the status quo until ownership could be determined. Thus, in my opinion, there was no impairment resulting
The facts of this case are distinguishable from those in Fuentes v. Shevin, supra, Wolfenbarger v. Williams, supra, and Florida Pawnbrokers & Secondhand Dealers Ass‘n, Inc. v. City of Fort Lauderdale, supra. In each of those cases, the police actually seized the property prior to any judicial determination of ownership. Similarly, the holdings in Wacksman v. Harrell, supra, and Rassner v. Federal Collateral Soc., supra, are distinguishable in that although the police had not actually seized the property from the pawnbrokers, the laws in question provided for the automatic seizure. I do not believe that the holdings in those cases warrant the holding reached by the majority in this case, that the Pawn Shop‘s due-process rights were violated by the application of sections
Moreover, I believe that the statutes, in general, provide for due process, i.e., an adjudication of ownership, prior to depriving pawnbrokers of any alleged stolen property in its possession. Section
Unlike the laws at issue in the cases relied on by the majority, our statutes do not provide for the immediate seizure of the property in the event the pawnbroker questions the affidavit of ownership. Rather, they plainly provide that the owner must seek a determination of ownership from the courts before there may be any deprivation of the property. This clearly satisfies the constitutional requirement of due process. Furthermore, the due process afforded to the pawnbroker is in no way lessened by the fact that section
In sum, I must dissent from the majority‘s opinion because I believe that the Pawn Shop received due process under the circumstances of this case. In fact, I believe it received more process than it was due, under our well-settled case law that a pawnbroker acquires no interest in stolen property as against the true owner. I completely agree with the sentiment expressed by the Kansas Court of Appeals regarding the risk that pawnbrokers take that property offered as security for a loan is stolen:
Because the pawnbroker is the one who deals with the thief, he or she should bear the risk of accepting stolen property. The pawnbroker‘s remedy in this case is to find the thief and recover against the thief for breach of warranty of title[.]
In Re: Two (2) Bose Speakers, Serial No. 121098, 17 Kan. App. 2d 179, 183, 835 P.2d 1385, 1388 (1992). In my opinion, justice will not be served by remanding this now five-year-old case to afford the Pawn Shop yet another bite at the apple, while simultaneously requiring the true owner, Jameson,
HANNAH, J., joins in this dissent.