1972); Holt v. Brown, 336 F.Supp. 2 (W.D.Ky.1971); Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa.1970); Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970); Musselman v. Spies, 343 F.Supp. 528 (M.D.Pa.1972). Defendants, in response, do not contend that the landlord lien laws of Nevada, taken alone, are constitutional; they do contend that because plaintiffs were given notice and opportunity for a hearing under Nevada's Forcible Entry and Detainer Statute (NRS §§ 40.215 et seq.)
See Neb.Rev.Stat. § 83-1,106 et seq. But the issue in the instant case is whether the two statutes interact, or, more specifically, whether the good time credit provisions are applicable to those incarcerated under the Nebraska Sexual Sociopath Act. That issue has not been presented to the state courts. For cases in which federal courts have declined to abstain because they found the state law clear, see, e.g., Lecates v. Justice of Peace Court No. 4, 423 F. Supp. 1379 (D.Del. 1976); Musselman v. Spies, 343 F. Supp. 528 (M.D.Pa. 1972); Keenan v. Board of Law Examiners, 317 F. Supp. 1350 (E.D.N.C. 1970). For cases in which federal courts have abstained because they found either that the state law was unclear or that it had not been authoritatively construed by the state courts, see, e.g., Connecticut State Fed'n of Teachers v. Board of Educ. Members, 538 F.2d 471 (2d Cir. 1976); Catrone v. Massachusetts State Racing Comm'n, 535 F.2d 669 (1st Cir. 1976); Blouin v. Dembitz, 489 F.2d 488 (2d Cir. 1973).
Moreover, a series of recent Supreme Court decisions, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1971) (per curiam); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per curiam); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967) (per curiam); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), have led many lower federal courts to conclude that such a requirement is no longer necessary in § 1983 cases. See, e.g., Beale v. Blount, 461 F.2d 1133, 1139 n. 11 (5th Cir. 1972); Padilla v. Ackerman, 460 F.2d 477, 479 (9th Cir. 1972); Gilliam v. City of Omaha, 459 F.2d 63, 63-64 (8th Cir. 1972) (per curiam); Jones v. Metzger, 456 F.2d 854, 856 (6th Cir. 1972); Hayes v. Secretary of Dept. of Public Safety, 455 F.2d 798, 800 (4th Cir. 1972); LeVier v. Woodson, 443 F.2d 360, 361 (10th Cir. 1971); Musselman v. Spies, 343 F. Supp. 528, 533 (M.D.Pa. 1972); Cook v. Edwards, 341 F. Supp. 307, 310 (D.N.H. 1972). We concede that several of our own recent opinions in the area of school administration, read broadly, would seem out of step with these authorities.
Although other Courts that considered the unconstitutionality of the Landlord and Tenant Act have not indicated the same inevitability of state involvement, no doubt that is because the challenge to the act focused on the unconstitutionality of the sale. See, e.g. Musselman v. Spies, 343 F. Supp. 528 (M.D.Pa. 1972), Santiago v. McElroy, 319 F. Supp. 284 (E.D.Pa. 1970). This long-standing construction of the Landlord and Tenant Act inevitably calls for the involvement of state officials once the landlord elects to begin a distraint.
Hall v. Garson, 468 F.2d 845 (5th Cir. 1972) and 430 F.2d 430 (5th Cir. 1970); Adams v. Sanson, 376 F. Supp. 61 (D.Nev.); Jenkins v. Halloran (C.A. 72-1477) (D.S.C., 3/22/73); Barber v. Rader, 350 F. Supp. 183 (S.D.Fla. 1972); MacQueen v. Lambert, 348 F. Supp. 1334 (M.D.Fla. 1972); Shaffer v. Holbrook, 346 F. Supp. 762 (S.D.W.Va. 1972); Dielen v. Levine, 344 F. Supp. 823 (D.Neb. 1972); Holt v. Brown, 336 F. Supp. 2 (W.D.Ky. 1971); Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56 (1971). Also, Gross v. Fox, supra; Musselman v. Spies, 343 F. Supp. 528 (M.D.Pa. 1972); Sellers v. Contino, 327 F. Supp. 230 (E.D.Pa. 1971); Santiago v. McElroy, supra. Finding as we do, it is not necessary to, nor do we, indicate any position on the Plaintiffs' contention that Article III also provides for unreasonable search and seizure by its distraint procedures when no intervention of a judicial officer is provided before entry may be made.
Furthermore, there is a special duty upon federal courts to exercise their jurisdiction in civil rights cases because abstention is least appropriate where federal civil rights are in jeopardy. Holmes v. New York City Housing Authority, 398 F.2d 262, 265-266 (2d Cir. 1968); Wright v. McMann, 387 F.2d 519, 525 (2d Cir. 1967); Owens v. Parham, 350 F. Supp. 598, 600 (N.D.Ga. 1972) (three-judge court); Musselman v. Spies, 343 F. Supp. 528, 533 (M.D.Pa. 1972) (three-judge court); Holt v. Brown, 336 F. Supp. 2, 5 (W.D.Ky. 1971) (three-judge court); Santiago v. McElroy, 319 F. Supp. 284, 292 (E.D.Pa. 1970). (three-judge court).
v. Forssenius, 1965, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50; Harrison v. National Association for Advancement of Colored People, 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; City of Meridian v. Southern Bell Telephone Telegraph Co., 1959, 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562; Government and Civic Employees Organizing Committee, CIO v. Windsor, 1957, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894; Shipman v. DuPre, 1950, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Spector Motor Service, Inc. v. McLaughlin, 1944, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; Chicago v. Fieldcrest Dairies, Inc., 1942, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Railroad Commission of Texas v. Pullman Company, 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; King-Smith v. Aaron, 3 Cir. 1972, 455 F.2d 378; Lewis v. Kugler, 3 Cir. 1971, 446 F.2d 1343; University Day Care Center, Inc. v. Temple University — Of Commonwealth of Higher Education, 3 Cir. 1971, 442 F.2d 1116; Musselman v. Spies, N.D.Pa. 1972, 343 F. Supp. 528. Abstention is not an automatic rule; rather, equitable discretion must be employed on a case-by-case basis to evaluate whether the required special circumstances exist. Baggett v. Bullitt, 1964, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377.
The answer appears to lie in the fact that, in the first confession of judgment case, Swarb v. Lennox, 314 F. Supp. 1091, 1098-99 (E.D.Pa. 1970) (three-judge court), aff'd, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972), the court found that the plaintiffs had only proven their case as to a class of "poor persons." Compare Musselman v. Spies, 343 F. Supp. 528, 534-35 (M.D.Pa. 1972) (three-judge court) (distraint declared unconstitutional in the Middle District of Pennsylvania only as to a similar class of "poor persons"). CDS nevertheless argues that the decision of the Third Circuit Court of Appeals in Luria Bros., supra, has saved distraint from constitutional extinction.
Numerous decisions have held the distraint provisions to be unconstitutional and unenforceable because they violated a tenant's rights to procedural due process. See Ragin v. Schwartz, 393 F. Supp. 152 (W.D.Pa. 1975); Litton Business Systems v. Paul L'Esperance, Inc., 387 F. Supp. 1265 (E.D.Pa. 1975); Gross v. Fox, 349 F. Supp. 1164 (E.D.Pa. 1972), vacated (this aspect of District Court order as overly broad) and remanded on other grounds, 496 F.2d 1153 (3rd Cir. 1974); Musselman v. Spies, 343 F. Supp. 528 (M.D.Pa. 1972); and Santiago v. McElroy, 319 F. Supp. 284 (E.D.Pa. 1970). The viability of the distraint provisions today, however, is open to question in light of two recent conflicting decisions from the Third Circuit and the Pennsylvania Superior Court — the difference resulting from a determination of when state action is involved to invoke the procedural protections afforded by the due process clause.
The defendant contends that it properly exercised its right of distress or distraint pursuant to Article III Sections 302 et seq. of the Pennsylvania Landlord and Tenant Act of 1951, which provides for a distress or distraint procedure which enables the landlord to take possession of and sell tenant's property located on the premises when tenant's rent is in arrearage. Although the courts of Pennsylvania have held that the sale provisions of the statute are constitutionally infirm for they provide for deprivation of property without due process of law, Santiago v. McElroy, 319 F. Supp. 284 (E.D. Pa. 1970), Musselman v. Spies, 343 F. Supp. 528 (M.D.Pa. 1972), the Court will further consider whether or not the facts in the present case justified the landlord's distraint of tenant's property, for the reason that no sale took place in the case at bar. 68 P.S. § 250.302, Landlord and Tenant Act of 1951, provides as follows: "Personal property located upon premises occupied by tenant shall, unless exempted by article four of this act, be subject to distress for any rent reserved and due."