11/04/77 KATHLEEN L. PIERCY, v. SEYMORE G. HEYISON,
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[2] KATHLEEN L. PIERCY, Appellant
v.
[3] SEYMORE G. HEYISON, individually and as Director of the
[4] Bureau of Traffic Safety for the Pennsylvania
[5] Department of Transportation; and JAMES B.
[6] WILSON, individually and as Secretary of
[7] the Pennsylvania Department of
[8] Transportation
[9] No. 76-2635
[10] 565 F.2d 854
BLUE BOOK CITATION FORM: 1977.C03.233 (http://www.versuslaw.com)
[11] Date Filed: November 4, 1977
[12] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF PENNSYLVANIA
[13] (D.C. Civil No. 76-41)
[14] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GIBBONS
[15] Before SEITZ, Chief Judge, GIBBONS and WEIS, Circuit Judges
[16] GIBBONS, Circuit Judge
[17] In this appeal from an order granting summary judgment to the
defendants, we consider, hopefully for the last time, the powers of a
single district judge to pass upon a constitutional challenge to a state
statute without convening a three-judge district court. Appellant
contends that Sec. 1413 of the Pennsylvania Vehicle Code, Pa. Stat. Ann.
title 75, Sec. 1413 (Purdon),1 violates procedural due process by
authorizing the suspension of her driver's license without affording her
a hearing. In the District Court below, a single judge held that
appellant's constitutional argument was clearly foreclosed by prior
decisions of the United States Supreme Court and thus was so
insubstantial as not to require the convening of a three-judge district
court pursuant to 28 U.S.C. Sec. 2281. That section of the Judicial Code
has now been repealed by the Act of August 12, 1976, Pub. L. 94-381,
Sec. 1, 90 Stat. 1119. But since the instant suit was commenced in April
of 1976, prior to the effective date of Pub. L. 94-381, the old Sec.
2281 still controls.2 We conclude that the District Court erred in
holding that appellant's constitutional challenge to the Pennsylvania
statute is foreclosed by previous Supreme Court decisions and,
consequently, we reverse the single judge order granting summary
judgment to the defendants.
[18] The appellant is Kathleen L. Piercy. In November, 1973, her
husband, while driving their jointly owned automobile, was involved in
an automobile accident. Mrs. Piercy alleges that she was not present in
the car at the time of the accident and that she was not exercising any
authority or control over her husband's operation of the vehicle. The
Piercys apparently were not insured. Subsequent to the accident, Mrs.
Piercy and her husband signed a $228.54 note payable in weekly
installments of $25 to the Aetna Casualty and Surety Company (Aetna) in
satisfaction of a subrogation claim. The note contained a cognovit
clause providing for confession of judgment if Mrs. Piercy and her
husband defaulted on any of the installments. The note contained no
admission of liability on Mrs. Piercy's part, but merely recited:
[19] This note is given for the auto accident on 11/6/74 at Route 197
near Meadville, Pa.
[20] Mrs. Piercy alleges that she signed the note because Aetna
threatened her with a license suspension pursuant to Sec. 1404 of the
Pennsylvania Vehicle Code, Pa. Stat. Ann. tit. 75, Sec. 1404 (Purdon).3
When she and her husband defaulted on their installment payments, Aetna
confessed judgment against both of them in the Court of Common Pleas of
Allegheny County. The Piercys reside in Crawford County, and they did
not receive notice either of the proceedings in Allegheny County or of
the fact that a judgment had been confessed against them. After the
judgment had remained unsatisfied for 60 days, the Prothonotary of
Allegheny County forwarded a certified copy of it to the defendants, who
are officials within the Pennsylvania Department of Transportation.
Acting pursuant to Sec. 1413(a) of the Pennsylvania Vehicle Code, the
defendants notified Mrs. Piercy of the summary suspension of her motor
vehicle operators license and vehicle registration until she should
satisfy the judgment. Mrs. Piercy promptly filed a class action suit on
her own behalf and as a representative of all persons being subjected to
Sec. 1413(a) driver's license suspensions predicated upon judgments
obtained by confession.
[21] The District Court declined to convene a three-judge court to
consider the constitutionality of the application of Sec. 1413(a) to
Mrs. Piercy. The district judge recognized that under the standard
articulated in Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93
S. Ct. 854 (1973), he should convene a three-judge court unless the
unsoundness of the plaintiff's claim "so clearly results from the
previous decisions of the [the Supreme Court] as to foreclose the
subject and leave no room for inference that the question sought to be
raised can be the subject of controversy." In order to understand the
District Court's holding, we must first explore the nature of Mrs.
Piercy's challenge to the Pennsylvania statute.
[22] In Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586
(1971), the plaintiff challenged Georgia's Motor Vehicle Safety
Responsibility Act, which provided that the driver's license of an
uninsured motorist involved in an accident would be suspended unless
that motorist could post security for the amount of damages claimed by a
party to the accident. The pre-suspension procedures under the Georgia
statute excluded any consideration of fault or responsibility for the
accident. The Court observed that once driver's licenses are issued,
their continued possession might be essential in the pursuit of a
livelihood. 402 U.S. at 539. Consequently, the Court held that licenses
could not be taken away without some procedural safeguards required by
the due process clause of the fourteenth amendment. The Court stated:
[23] We hold, then, that under Georgia's present statutory scheme,
before the State may deprive petitioner of his driver's license and
vehicle registration it must provide a forum for the determination of
the question whether there is a reasonable possibility of a judgment
being rendered against him as a result of the accident.
[24] 402 U.S. at 542.
[25] Relying on Bell v. Burson, a three-judge district court in
Kilfoyle v. Heyison, 417 F. Supp. 239 (W.D. Pa. 1976), struck down Sec.
1404 of the Pennsylvania Vehicle Code. Section 1404 authorized the
suspension of driver's licenses of persons involved in automobile
accidents unless those persons made deposits to secure the payment of
any judgments which might be rendered against them due to the accidents.
The three-judge district court held this section unconstitutional as a
denial of procedural due process since it did not provide for an
effective pre-termination inquiry into the question of fault or
liability. The court rejected the state's argument that due process was
satisfied by the availability of de novo judicial review of the
termination.The court noted that of the approximately 56,000 suspension
proceedings under the statute in an eight-month period, only 179 were
followed by petitions for de novo review. The court assumed that many of
the remaining individuals were deterred from exercising their right of
de novo review by the need for paying a filing fee and for obtaining
counsel. 417 F. Supp. at 247.
[26] The District Court in this case distinguished the Kilfoyle v.
Heyison holding that Sec. 1404 was unconstitutional on the ground that
Sec. 1404 dealt with prejudgment suspensions, while Sec. 1413, the
statute challenged here, dealt with post-judgment suspensions. The
District Court reasoned that the due process defect in Bell v. Burson
was the absence of a pre-termination determination of the likelihood of
liability. Here post-judgment terminations were supported by reliable
determinations of such liability in the judgments themselves.4
[27] That reasoning, however, misses the thrust of Mrs. Piercy's
claim. She contends that a judgment by confession on a cognovit note
obtained under the coercion of the unconstitutional Sec. 1404 does not
afford the indicia of reliability required by Bell v. Burson. That
contention compels us to examine the Supreme Court case law on the
reliability of judgments resulting from cognovit notes. The governing
cases are D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 31 L. Ed. 2d
124, 92 S. Ct. 775 (1972) and Swarb v. Lennox, 405 U.S. 191, 31 L. Ed.
2d 138, 92 S. Ct. 767 (1972).
[28] In Overmyer, a corporate affiliate of D. H. Overmyer Co., Inc.,
contracted with the respondent Frick Co. for the manufacture and
installation by Frick of an automatic refrigeration system in a
warehouse under construction. When Overmyer defaulted on its payments,
Frick stopped the work in progress. After Overmyer had made a partial
cash payment and had issued an installment note for the balance, Frick
completed the work, which Overmyer accepted as satisfactory. However,
Overmyer again requested additional time to make the installment
payments. After extensive negotiations between counsel of both
corporations, Frick agreed to release three mechanic's liens, to reduce
the monthly payment amounts and interest rate, and to extend the time
for final payment. In exchange for these concessions, Overmyer consented
in advance to Frick's obtaining a judgment without notice or hearing if
Overmyer defaulted on its subsequent payments. After Overmyer stopped
its payments, Frick caused judgment to be entered on the note pursuant
to the cognovit clause. The Supreme Court upheld the cognovit note
judgment against Overmyer's due process challenge, holding that under
the circumstances Overmyer had voluntarily, knowingly, and intelligently
waived its right to notice and to a hearing. 405 U.S. at 184-87. In
reaching this conclusion, the Court emphasized: (1) that counsel for
both sides had negotiated for the cognovit note, id. at 183; (2) that
Overmyer was a corporation and thus there was not bargaining disparity,
id. at 186; and (3) that Overmyer secured benefits, such as the release
of Frick's mechanic's liens, the reduction in payments, and extension of
time, in exchange for the note, id. at 186-87. Although the Supreme
Court upheld the cognovit note judgment under these circumstances,
Justice Blackmun's opinion for the Court carefully limited the holding:
[29] 2. Our holding, of course, is not controlling precedent for
other facts of other cases. For example, where the contract is one of
adhesion, where there is great disparity in bargaining power, and where
the debtor receives nothing for the cognovit provision, other legal
consequences may ensue.
[30] 405 U.S. at 188.
[31] In Swarb v. Lennox, supra, a companion case to Overmyer, the
Supreme Court dealt with the Pennsylvania cognovit note practice. The
Court held that the particular appeal was governed by Overmyer.
Nevertheless, the majority opinion again carefully restricted the reach
of the decision.
[32] The decision in Overmyer and the disposition of the present
appeal prompt the following observations:
[33] *fn1. In our second concluding comment in Overmyer, supra, at
188, we state that the decision is "not controlling precedent for other
facts of other cases," and we refer to contracts of adhesion, to
bargaining power disparity, and to the absence of anything received in
return for a cognovit provision. When factors of this kind are present,
we indicate, "other legal consequences may ensue." That caveat has
possible pertinency for participants in the Pennsylvania system.
[34] 405 U.S. at 201.
[35] The facts of the present case differ markedly from the
circumstances that induced the Supreme Court in Overmyer to uphold the
cognovit note judgment against a due process challenge. First, the
indicia of equal bargaining power present in Overmyer are absent here.
Of the two parties to the cognovit note, one is a giant financial
institution and the other is a woman who alleges that she needs a
driver's license to earn a living and who is too impoverished to pay a
$228 judgment. Secondly, unlike the corporation in Overmyer, Mrs. Piercy
was not represented by counsel when she agreed to sign the cognovit
note. Finally, the sole benefit that Mrs. Piercy derived from signing
the note was the avoidance of an immediate suspension of her license
under Sec. 1404, a statute which was later declared unconstitutional. In
Overmyer and Swarb, Justice Blackmun carefully left open the question
whether a cognovit clause obtained under circumstances such as those
alleged here could result in a judgment comporting with due process
standards. Even granting that a judgment of liability meeting due
process standards will satisfy Bell v. Burson, whether the cognovit
clause judgment would, in the circumstances alleged, meet such standards
appears to be a question which itself requires a due process hearing
before the judgment can result in a summary license suspension.
[36] In reaching the opposite conclusion, the District Court relied
upon Young v. Cobb, 419 U.S. 1098, 42 L. Ed. 2d 795, 95 S. Ct. 768
(1975), in which the Supreme Court summarily affirmed a three-judge
court decision rejecting constitutional challenges to Florida's
financial responsibility law. Reliance on Young v. Cobb was misplaced,
however. It is true, as the District Court noted, that the lower federal
courts are bound by the precise holdings of summary affirmances without
opinion. Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 45 L. Ed.
2d 223 (1975). But we have also been admonished that summary affirmances
without opinion, while they affirm the judgments, do not necessarily
approve of the reasoning by which they were reached. See Fusari v.
Steinberg, 419 U.S. 379, 388, 42 L. Ed. 2d 521, 95 S. Ct. 533 n.15
(1975); id. at 391-92 (Burger, C.J., concurring). A fortiori, if a
three-judge court did not actually decide the issue presented in a later
case, a summary affirmance means nothing on that issue.
[37] While the Florida statutory scheme challenged in Young v. Cobb
is similar to the Pennsylvania statute involved here, the plaintiff in
that case did not, while Mrs. Piercy does, challenge the state law on
procedural due process grounds. Rather, the Florida plaintiff alleged a
denial of equal protection and a violation of substantive, rather than
procedural, due process.The heart of plaintiff's argument there was that
the Florida scheme substantively infringed his right to travel and was
indefensible in the absence of a compelling state interest. The
three-judge court held that the traditional rational basis standard of
review applied to the substantive fourteenth amendment challenge to the
state's classification and that Florida had met this standard. The
majority opinion gave procedural due process only passing references5
and Judge Tjoflat's concurring opinion observed:
[38] Plaintiffs do not attack the scheme on procedural due process
grounds, but rather complain that it violates substantive due process of
law.
[39] Young v. Cobb, No. 72-2064-Civ.JE (S.D. Fla. 1974) (three-judge
court) (unreported opinion). It can hardly be claimed that the Supreme
Court's summary affirmance of Young v. Cobb binds other federal courts
on an issue never even presented to the court whose judgment was
affirmed. Moreover, even if a procedural due process challenge had been
made in Young v. Cobb, the case would not be binding here because the
suspensions in Young v. Cobb did not result from a judgment obtained by
confession. Thus, the case did not involve the serious questions
carefully reserved by the Supreme Court in Overmyer and Swarb, questions
which, far from being forclosed by the Court's prior opinions, are open
and difficult.
[40] The District Court also relied on the Supreme Court's summary
affirmance in MacQuarrie v. McLaughlin, 394 U.S. 456, 22 L. Ed. 2d 417,
89 S. Ct. 1224 (1969), of a three-judge court decision6 upholding a
provision of a Massachusetts financial responsibility law imposing a
driver's license suspension on an owner not guilty of any negligence in
the accident. But the challenge to the statute in MacQuarrie, like that
in Young v. Cobb, was substantive, not procedural. Indeed, since the
summary affirmance took place before the Supreme Court's decision in
Bell v. Burson, that affirmance cannot be understood to be a holding on
the Bell v. Burson due process right to a pre-termination hearing.
Moreover, the suspension in MacQuarrie came after a litigated judgment
in which the owner was found liable to the injured party on a respondeat
superior basis because Mass. G.L. Ann. c 231, Sec. 85A (West)
established a prima facie case that the driver of the car was the agent
of the owner. There was a full opportunity to litigate the substantive
challenge to that statute in the lawsuit and to contest the prima facie
case of agency. The supension took place only thereafter. MacQuarrie can
by no stretch of the imagination be regarded as deciding the issue of a
termination based on a cognovit note judgment.
[41] We agree with Mrs. Piercy that, far from being foreclosed by
prior decisions of the Supreme Court, her contention that Sec. 1413(a)
is unconstitutional when applied without a hearing to coerce payments of
cognovit note judgments presents under Bell v. Burson, D. H. Overmyer
Co. v. Frick Co., and Swarb v. Lennox, a substantial claim which should
not have been decided by a single district judge. At the same time we
are not prepared to hold, as she suggest we might, that the statute as
applied to her and those similarly situated is so patently
unconstitutional that the single district judge should have granted
judgment in her favor. See Bailey v. Patterson, 369 U.S. 31, 7 L. Ed. 2d
512, 82 S. Ct. 549 (1962). Reluctant as we are to see even one more
three-judge court, we conclude that such a court was required for the
decision of this case.
[42] The summary judgment shall be vacated and the case remanded to
the district court for the convening of a three-judge district court.
IN AGREEMENT
[43] WEIS, Circuit Judge, Concurring:
[44] In view of the low threshold set out by Goosby v. Osser, 409
U.S. 512, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973), I agree it is necessary
to convene a three-judge court in this case. The thrust of plaintiff's
position is that §§ 1404 and 1413 form part of an integral plan and
since § 1404 has been declared unconstitutional, the validity of § 1413
is undermined insofar as it can authorize a suspension without a
hearing. She contends the impending application of § 1404, which would
allow suspension of her license before any determination of fault,
coerced her into signing the judgment note. Asserting that § 1404
afforded no opportunity for an adequate administrative proceeding before
suspension, she says the threat of immediate loss of her operating
privileges under that section forced her to choose between giving up her
license or signing the judgment note. Her argument is that the confessed
judgment which followed default on the note cannot replace an
adjudication of liability and is not an admission of fault by her,
express or implied, nor even a voluntary agreement to pay. Under her
theory, failure to satisfy the judgment cannot validly support her
license suspension pursuant to § 1413.
[45] In fairness to the district judge, it should be noted that no
such argument was presented to him but was first raised on appeal.
Moreover, Kilfoyle v. Heyison, 417 F. Supp. 239 (W.D. Pa. 1976), which
declared 1404 unconstitutional, was not decided until some months after
the Secretary of the Department of Transportation had ordered suspension
of plaintiff's license and after she had filed this suit.
[46] In Kilfoyle v. Heyison, supra, the court struck down § 1404
because the administrative proceedings to determine the possibility of
liability were not adequate. Before entering the decree, the court gave
the Department of Transportation an opportunity to adopt regulations to
remedy the deficiencies. Only after it refused did the court find § 1404
unconstitutional as administered. Kilfoyle' s conclusion that the
procedures were inadequate was based on Bell v. Burson, 402 U.S. 535, 29
L. Ed. 2d 90, 91 S. Ct. 1586 (1971), which held that to afford the
licensee due process a state must provide for an inquiry into whether
there is reasonable possibility of fault or liability before suspension.
The flexible nature of due process in the context of license revocation
was most recently explored in Dixon v. Love, 431 U.S. 105, 97 S. Ct.
1723, 52 L. Ed. 2d 172, 45 U.S.L.W. 4447 (U.S. 1977). If the three-judge
court should determine that the Dixon case requires a reexamination of
Kilfoyle' s holding, then it may not be necessary to review the use of
cognovit notes.
[47] I agree with the majority that the judgment note issue is not
foreclosed by Young v. Cobb, 419 U.S. 1132, 42 L. Ed. 2d 831, 95 S. Ct.
818 (1975), or MacQuarrie v. McLaughlin, 394 U.S. 456, 22 L. Ed. 2d 417,
89 S. Ct. 1224 (1969), because in neither case was the judgment secured
by use of a cognovit clause. I am not willing to assume, however, that
an operator's license may not be suspended for nonpayment of a vehicle
accident judgment simply because it was entered on the authority of a
cognovit clause.
[48] The disparate financial condition of the parties to this case
should not blind one to the fact that the victim of an uninsured
motorist's negligence may be indigent and more in need of his vehicle to
make a living than the negligent party. See Shultz v. Heyison, 439 F.
Supp. 857 (No. 74-1176, M.D. Pa. Aug. 26, 1975). The use of a judgment
note eliminates the delay and expense necessary to secure a judgment on
the merits by a complete trial or, more likely, on default. The cognovit
clause is an effective and efficient method of resolving numerous small
claims and indeed may save the uninsured owner or operator litigation or
other expenses. Particularly if the judgment note contains a stated
admission of liability, no convincing argument has yet been made that it
is not a valid predicate for license suspension. In the rare instance
where fraud, coercion, or a similar defense is asserted, procedures to
strike the judgment or appeal the suspension to the court are available.
[49] concur with the majority's conclusion that we should not enter
judgment for the plaintiff and that the case should be remanded for the
convocation of a three-judge court.
***** BEGIN FOOTNOTEHERE *****
[50] *fn1 Pa. Stat. Ann. tit. 75, Sec. 1413 provided:
[51] (a) The secretary, upon receipt of a certified copy of a
judgment, shall forthwith suspend the license and registration of any
resident operator or owner and any nonresident's operating privilege of
any person against whom such judgment was rendered except as hereinafter
otherwise provided in this section and in section 1416.
[52] (b) If the judgment creditor consents in writing, in such form
as the secretary may prescribe, that the judgment debtor be allowed
license and registration or nonresident's operating privilege, the same
may be allowed by the secretary, in his discretion, for six (6) months
from the date of due consent, and thereafter until such consent is
revoked in writing, notwithstanding default in the payment of such
judgment, or of any instalments thereof prescribed in section 1416,
provided the judgment debtor furnishes proof of financial
responsibility.
[53] (c) Any person whose license, registration or nonresident's
operating privilege has been suspended, or is about to be suspended, or
shall become subject to suspension under the provisions of this article,
may be relieved from the effect of such judgment as hereinbefore
prescribed in this article, if such person can present to or file with
the secretary proper evidence that a bond or insurance policy as
provided for in this article was in force and effect at the time of the
accident resulting in the judgment, and is or should be available for
the satisfaction of the judgment to the extent provided for in this
article; however, if the bond or insurance policy is not available
because the insurance company or surety company has gone into
receivership or bankruptcy, such person shall only be required to
present to or file with the secretary proper evidence that a bond or
insurance policy was in force and effect at the time of the accident.
[54] This statutory provision now appears in Pennsylvania's official
statutory compilation as 75 Pa. Cons. Stat. Sec. 1742(a). Because this
case was commenced prior to the new codification scheme, our opinion
will refer to this statutory provision as Sec. 1413. However, the
reasoning employed in the opinion is equally applicable to Sec. 1742(a).
[55] *fn2 Section 7 of Pub. L. 94-381 provides that "(this) Act shall
not apply to any action commenced on or before the date of enactment."
[56] *fn3 Pa. Stat. Ann. tit. 75, Sec. 1404 provided in relevant
part:
[57] (a) If twenty (20) days after the receipt of a report of a motor
vehicle accident within this State which has resulted in bodily injury
or death or damage to the property of any one person in excess of one
hundred dollars ($100.00), the secretary does not have on file evidence
satisfactory to him that the person who would otherwise be required to
file security under subsection (b) of this section has (1) been released
from liability or (2) has been finally adjudicated not to be liable or
(3) has executed a warrant for confession of judgment payable in such
instalments as the parties have agreed to or (4) has executed a duly
acknowledged written agreement providing for the payment of an agreed
amount in instalments with respect to all claims for injuries or damages
resulting from the accident, the secretary shall determine the amount of
security which in his judgment shall be sufficient to satisfy any
judgment or judgments that may be recovered against each operator or
owner for damages resulting from such accident upon the basis of reports
information or other evidence submitted to or obtained by the
secretary....
[58] (b) The secretary shall within sixty (60) days after the receipt
of such report of a motor vehicle accident, suspend the license of each
operator and all registrations of each owner of a motor vehicle in any
manner involved in such accident....
[59] This section was held to be unconstitutional in Kilfoyle v.
Heyison, 417 F. Supp. 239 (W.D. Pa. 1976) (three-judge court). It was
repealed by Act of June 17, 1976, Pub. L. 162, No. 81, Sec. 7, 1976 Pa.
Legis. Serv. at pp. 287-88 (effective July 1, 1977). Mrs. Piercy
contends that Sec. 1404 was being enforced as of February 6, 1975, when
she signed the cognovit note.
[60] *fn4 The District Court accepted the reasoning of the
Pennsylvania Commonwealth Court in Department of Transportation v.
Rodgers, 20 Pa. Commw. Ct. 393, 341 A.2d 917 (1975), overruling
Commonwealth v. Roeting, 7 Pa. Commw. Ct. 317, 300 A.2d 125 (1973). In
Roeting, the Pennsylvania Commonwealth Court had held: (1) that a
driver's license could not be suspended without sufficient evidence to
determine that the judgment was the result of the judgment debtor's
negligent driving and (2) that the judgment itself did not constitute
such evidence. In Rodgers, however, that same court concluded that the
purpose of Sec. 1413 was to insure payment to judgment creditors from
those who had been adjudged liable in car accidents. The court noted
that Bell v. Burson did not require a hearing to determine negligence,
but only to determine the possibility of a judgment arising out of the
accident. The court reasoned that since Sec. 1413 was triggered only
after the claim had been reduced to judgment, the only due process
requirement is a determination that the person whose license is being
suspended is the same person against whom the judgment was entered. 341
A.2d at 921.
[61] *fn5 The majority referred to the issue of procedural due
process at two points in its opinion. The court first stated:
[62] For purposes of Plaintiff's contention. Carnegie v. Dep't of
Public Safety, 60 So. 2d 728 (Fla. 1952); Wall v. King, 206 F.2d 878
(1st Cir. 1953); and Bell v. Burson, 402 U.S. 535, 92 S. Ct. 1586, 29 L.
Ed. 2d 90 (1971) stand only for the proposition that whether a driver's
license be considered a 'right' or a 'privilege,' the license and the
freedom to use one's own automobile cannot be taken away by the state
without affording procedural due process.
[63] Young v. Cobb, No. 72-2064-Civ-JE, at 4 (S.D. Fla. 1974)
(three-judge court) (unreported opinion).
[64] Later the majority said:
[65] Denial of installment payments is possible, of course, but the
fact of judicial recourse satisfies procedural due process.
[66] Id. at 7.
[67] Although this second quotation seems to consider the procedural
due process issue, it certainly was not necessary to the decision since
the contention was never raised by the plaintiff. Accordingly the
statement is only dictum and is not binding on this court.In addition,
the statement addresses only the question of whether there is judicial
review of a denial of a request to pay the judgment in installments. As
this opinion will soon point out, this issue differs from the
constitutional question presented here - i.e. whether a hearing is
required to determine whether the cognovit note judgment which forms the
basis for the summary license suspension, comports with due process.
[68] *fn6 MacQuarrie v. McLaughlin, 294 F. Supp. 176 (D. Mass. 1968)
(three-judge court).
***** END FOOTNOTEHERE *****
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