Full opinion text
MEMORANDUM OPINION AND ORDER FOX, Chief Judge. This is a challenge to the constitutionality of the self-help repossession and disposition provisions of the Uniform Commercial Code, Sections 9-503 and 9-504, enacted in Michigan, M.C.L.A. Secs. 440.9503 and 440.9504, M.S.A. Secs. 19.9503 and 19.9504 [hereafter cited as UCC 9-503 and 9-504] as applied to automobiles. Each of the named plaintiffs is an owner of an automobile which was subject to a security interest held by one of the named defendants, and which was repossessed without previous notice and opportunity for judicial hearing, as authorized by UCC 9-503 and 9-504. Defendants Branch County Bank of Cold-water, Michigan, Security National Bank and Michigan National Bank are corporations organized under the laws of Michigan. Each is licensed under the Motor Vehicle Sales Finance Act, M.C. L.A. Sec. 492.101 et seq., M.S.A. Sec. 23.628(1) et seq. The plaintiffs allege that self-help repossession of automobiles subject to security agreements by the named defendants as authorized by UCC 9-503 and 9-504 deprives them of their property without due process of law contrary to the Fourteenth Amendment of the United States Constitution and the implementing civil rights statute, 42 U.S.C. Sec. 1983. The plaintiffs seek a declaration pursuant to 28 U.S.C. Secs. 2201 and 2202 that UCC 9-503 and 9-504 are unconstitutional. They also seek injunctive relief, inter alia, restraining the named defendants from repossessing automobiles on which they hold security agreements without prior notice and opportunity for judicial hearing. Jurisdiction is properly alleged under 28 U.S.C. Secs. 1343(3) and (4). The parties have filed extensive stipulations of fact. The plaintiffs seek to maintain the suit as a class action, and have moved for summary judgment. Each defendant has filed a motion to dismiss on the grounds that the court lacks jurisdiction and that this case is not a proper class action. Insofar as the motions to dismiss allege that there is insufficient state action to bring the plaintiffs’ claims within the Fourteenth Amendment and 42 U.S.C. Sec. 1983, it is proper to treat them as being motions to dismiss for failure to state a claim on which relief can be granted. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Since the defendants allege in their Memorandum of Law in Support of Motion to Dismiss that the plaintiffs have not been denied due process of law, and the Memorandum has been incorporated into the motions by reference, the court will treat the defendants’ motions as for summary judgment under Rule 56. The court finds no material issues of fact to be resolved by further hearings. The foregoing Opinion and Order is based on the pleadings, stipulations, affidavits and exhibits on file. I. The facts in the cases of the named plaintiffs are relatively simple. The plaintiffs Edward and Shirley Ann Watson are joint owners of a 1966 Buick, subject to a security interest held by defendant Branch County Bank. The plaintiffs purchased the vehicle for about $700, made a substantial down payment, and borrowed $484.64 from the Branch County Bank. The security agreement between the Watsons and the Bank provided: “In the event Buyer defaults in the payment of any amounts due hereunder, or in the performance of any other obligations hereunder, or if a proceeding in bankruptcy, receivership or insolvency is instituted by or against Buyer, then Seller may declare the full amount hereunder immediately due and payable without notice or demand, and shall have all of the remedies of a secured party under the Michigan Uniform Commercial Code and any other applicable laws.” On August 3, 1972, plaintiffs’ vehicle was peacefully repossessed from the driveway, in accordance with M.C.L.A. Sec. 440.9503. The plaintiffs did not receive notice of a judicial hearing before repossession, but they did receive notice of repossession and notice of the proposed sale. At the time of repossession, the plaintiffs still owed $170.88 to the Bank. It appears from the affidavit filed by the plaintiffs that they have a child which has a chronic bronchial condition which requires visits to the doctor’s office for care. The plaintiffs’ residence is approximately ten blocks from the nearest bus line and during the time that the plaintiffs were without their automobile, Mrs. Watson had to use a taxi cab or make requests of friends for transportation in order to get the child to the doctor. The plaintiffs Barbara and James Grabbert are joint owners of a 1969 Chevrolet that was subject to a security interest held by defendant Michigan National Bank. The security agreement between Barbara and James Grabbert and the Bank required the former to maintain insurance on their vehicle. The agreement also provided that upon default the Bank could “exercise from time to time any rights and remedies, including the right to immediate possession of the goods, available to it under applicable law.” The agreement further provided, “All rights and obligations of the parties hereto concerning the retaking, retention, redemption, and resale of the goods and the disposition of the proceeds thereof, shall be governed by the applicable provisions of the Uniform Commercial Code as adopted in the State of Michigan.” Before repossession of the Grabberts’ automobile, the Allstate Insurance Company, with whom the Grabberts had insurance, informed Michigan National Bank that the insurance on the Grabbert vehicle had been cancelled. It appears from the affidavits and exhibits that the Grabberts’ policy had been cancelled by Allstate in error. Nonetheless, on June 23, 1972, Michigan National Bank repossessed the Grabbert vehicle from the employees’ parking lot at Mr. Grabbert’s place of work, the Lakeview General Hospital. The Battle Creek Township police phoned Mr. Grabbert at work to inform him that his car had been repossessed and that he should not report it stolen. The vehicle was peacefully repossessed in accordance with M.C.L.A. Sec. 440.-9503, and the plaintiffs did not have a judicial hearing at any time prior to repossession. Although the Bank was informed of Allstate’s error, it required the Grabberts to pay the entire outstanding balance on their loan, approximately $800.00, as a condition of the return of the car. To do this, the Grabberts had to secure a new loan from a small loan company at a substantially higher rate of interest than they had been charged on the original loan with Michigan National. Plaintiff Johnny Gatson purchased a 1971 Buick from Esmer French, d/b/a French’s Auto Sales, on or about December 20, 1971. He signed an automobile purchase money security agreement establishing a security interest in the automobile in favor of French. French assigned the contract and security interest to the defendant Security National Bank of Battle Creek. The security agreement provided in part: “Upon . default and at any time thereafter Seller may declare all obligations secured hereby immediately due and payable and shall have the remedies of a Seller under the Uniform Commercial Code.” Subsequent to the making of the contract, the Bank received only two regular monthly payments of $125.57 each on March 7 and May 19, 1972. On July 7, 1972, two agents of the Bank observed the Gatson vehicle parked on Michigan Avenue in the City of Battle Creek during normal business hours. After determining that it was the Gatson vehicle, the agents of the Bank placed an order for a wrecker to come to the scene to remove the vehicle to premises controlled by the Bank. While the Bank’s agents were waiting for a wrecker, a police car operated by an officer of the Battle Creek Police Department drove by. One of the Bank’s agents flagged the car down, and told the officer that they were repossessing the Gatson vehicle. The officer got out of his car and remained on the scene, standing on the sidewalk a few feet from the Gatson vehicle. The Gatson car had been driven to the place where identified by the Bank’s agents by Frieda Miller (now Frieda Gatson) with the consent of plaintiff Gatson. Subsequent to the arrival of the officer on the scene, she returned to the car and was advised by the agents of the Bank that they were taking possession of the car by reason of Gatson’s claimed default in payments. At first Ms. Miller refused to give up the keys, but she did so after being informed that the wrecker had been called. It is stipulated that the police took no part in the physical repossession except as might be inferred from the physical presence of the officer at the scene. The agents of the Bank did not tell Ms. Miller that the police could intervene if she did not give them the keys. It is also stipulated that the vehicle was peacefully repossessed without a breach of the peace, and that the Bank did not seek judicial authorization for the removal of the vehicle from the actual or constructive possession of the plaintiff Gatson. After the Gatson vehicle was driven away by the Bank’s agents, it was driven to a fenced and locked parking lot owned and maintained by the Bank (where the vehicle has been ever since). The statutes upon which the defendants rely are a part of Michigan’s comprehensive regulation of the financing of automobile purchases. The Michigan scheme presupposes that nearly all buyers of automobiles are unable to fully protect themselves because of a lack of intelligence, attention, knowledge, assertiveness, or bargaining power. The scheme likewise presupposes that a significant number of sellers will take unfair advantage of the situation unless they are subject to regulation. Michigan statutes carefully structure automobile sales financing, prohibiting some practices, requiring others, and deliberately leaving some aspects of the transactions open to the parties. The Motor Vehicle Sales Finance Act, M.C.L.A. Sec. 492.101 et seq., provides for the licensing of those in the business of financing automobile sales. The form and mode of execution, and some of the contents of financing contracts are controlled by statute, M.C.L.A. Sec. 492.112 et seq. Financers are expressly forbidden to include in their contracts certain terms relating to accelerated default, repossession, and waiver of buyer rights of action, among others. M.C.L.A. Sec. 492.-114. The automobile certificate of title requirements, administered by the Michigan Department of State, are part of the regulatory plan. The purchase and sale of an automobile and the creation of a security interest therein must be reported to the Department of State. Proper reporting of the existence of a security interest in an automobile is necessary for perfection. Upon receipt of an application for a certificate of title, the Department is required to “determine the genuineness, regularity, and legality” of the application, M.C.L.A. Sec. 257.209. The Department is empowered to conduct investigations, M.C.L.A. Sec. 257.209, and is required to refuse to issue a certificate of title when it has “reasonable ground to believe that . the issuance of a certificate of title would constitute a fraud against the rightful owner or other person having a valid lien upon such vehicle . . .,” M.C.L.A. Sec. 257.219(2). In most cases, the Department issues the new owner a certificate of title containing a statement of the security interest. M.C.L.A. Secs. 257.216, 257.217, 257.238, 257.222. The UCC provisions on.secured transactions are essential and complementary parts of the sales and financing regulations. Within certain broad limits, Michigan leaves most of the matters concerning default and foreclosure to the parties. Neither the UCC nor 'the Motor Vehicle Sales Act defines default. Once the secured party believes, correctly or not, that a default has taken place, he may take immediate possession of the automobile “unless otherwise agreed” by the parties. UCC 9-503. Functionally, both power and process are in the hands of creditors. In the context of consumer automobile sales financing, the words “unless otherwise agreed” in UCC 9-503 are superfluous. As the regulatory scheme presumes, sellers and financers have superior expertise and bargaining power, so they are effectively free to demand and get purchaser adherence to “self-help repossession” as a seller’s remedy for default. All the financing contracts involved in this case are printed, and all contain such contractual provisions. The burden is entirely upon the debt- or to challenge the seizure of his automobile by the secured party. If the secured party refuses to relent, then the debtor must go to court. However, the financial condition of most consumer debtors, the value of the automobile, and the high cost of legal services in most cases preclude such a course of action. The practical result of the present scheme is to leave most debtors without effective means of redress for wrongful seizures of automobiles. After the seizure of the automobile for alleged default, the financer may sell it in a commercially reasonable manner, UCC 9-504. The purchaser at the foreclosure sale takes the debtor’s interest and takes free of the financer’s security interest and all subordinate liens or security interests. It is crucial to the repossession-sale scheme that the Secretary of State must, on request and on the submission of appropriate documents and fees, issue a new certificate of title. M.C.L.A. Sec. 257.236a(a) and (d). This is done on ex parte affidavit that the debtor’s interest in the automobile was “lawfully terminated.” Moreover, if the outstanding certificate of title is not delivered to the Secretary of State, that officer has the affirmative duty of making a “demand therefor from the holder thereof.” Without the help and cooperation of the Secretary of State, the whole repossession-sale scheme would collapse, since good title could not be transferred without it. II. The plaintiffs have moved the court for an order declaring that this case is properly maintainable as a class action. They propose that the class of plaintiffs be composed of the named plaintiffs and all others whose automobiles are subject to repossession by one of the named defendants without prior notice and opportunity for judicial hearing, as authorized by M.C.L.A. Secs. 440.9503 and 440.9504, M.S.A. Secs. 19.9503 and 19.-9504. The defendants contend that this suit is not properly maintainable as a class action. A. For a case to be properly maintainable as a class action, all the requirements of F.R.Civ.P. 23(a) and the requirements of one of the subsections of Rule 23(b) must be met. The plaintiffs allege that all the requirements of Rule 23(a) are met in this case, and that the requirements of Rule 23(b)(2) are also met. The defendants deny that this case is appropriately maintainable as a class action under Rule 23. Each of the requirements of Rule 23, and its application to this case, is discussed below. It is, of course, well settled that “to have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents.” Schlesinger v. Reservists Committee to Stop the War,-U.S.-, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974). At the date this suit was commenced, the plaintiffs Barbara and James Grabbert had no unpaid loan or outstanding security agreement with the defendant Michigan National Bank, and their automobile was not subject to seizure and sale by the Bank. Although they may sue for themselves, they cannot represent such a class as they request, or any other readily definable and manageable class that occurs to the court. The plaintiffs Edward and Shirley Watson and Johnny Gatson, in contrast, did have unpaid loans and outstanding security agreements at the date they filed their complaints, so they may represent a class, providing the other requirements are met. Accordingly, the rest of this Part II of this Order applies only to the Watsons and Gatson and their requests that their cases be maintained as class actions. Rule 23(a)(1) provides that the class must be so numerous that joinder of all the members is impractical. The defendants have stipulated that there are a substantial number, amounting in specified cases to several thousands, of loans outstanding which are secured by automobiles. It would clearly be impractical to join all these debtors as parties to this lawsuit. Rule 23(a)(2) provides that there must be questions of law or fact common to the class. In this case, the questions of law common to the class concern the issue of whether the repossession of automobiles without previous notice and opportunity to be heard as authorized by M.C.L.A. Secs. 440.9503 and 440.9504 deprives the members of the plaintiffs’ class of their property without due process of law in violation of the Fourteenth Amendment of the United States Constitution and its implementing statutes. The rule does not require that all questions of law or fact be common to the class, Like v. Carter, 448 F.2d 798, 802 (8th Cir. 1971), cert. den. 405 U.S. 1045, 92 S.Ct. 1309, 31 L.Ed.2d 588 (1972), so the fact that there are some factual matters which may be peculiar to the named plaintiffs does not mean that this requirement is not met. Similarly, the named plaintiffs’ claims are “typical” of those of the class, as required by Rule 23(a) (3). Rule 23(a)(4) requires that the named plaintiffs must fairly and adequately protect the interests of the class. There can be no doubt that the plaintffs’ attorneys supported by the considerable legal resources of the Michigan Legal Services Assistance Program, are expert and fully qualified to render fair and more than adequate legal representation to the members of the plaintiffs’ class. The defendants have objected that the plaintiffs do not adequately represent the “interests” of all the members of the plaintiffs’ class as required by Rule 23(a)(4). Defendants have asserted that if M.C.L.A. Secs. 440.9503 and 440.-9504 were declared unconstitutional, then the cost of credit would be increased to all members of the plaintiffs’ class and some members would not be able to secure any credit. This, it is contended, would be contrary to the “interests” of the plaintiffs’ class, and especially contrary to the interests of those who could no longer obtain credit. The defendants’ analysis misapprehends the basic purpose of Rule 23(a)(4), and the types of interest to which it refers. Apart from the question of the quality of counsel, the rule directs the court to take particular care that absent plaintiffs’ legally protectable interests are not unfairly lost or compromised through the class action. This possibility is usually present in class action suits concerning pre-existing funds, or suits in which a large number of people have common or similar grounds for •the assertion of damage claims against a well-heeled defendant. In these and similar situations, the court must guard against collusion, see, e.g., Hansberry v. Lee, 311 U.S. 411, 61 S.Ct. 115, 85 L.Ed. 22 (1940), or improper actions by putative representatives which prejudice the claims of absent plaintiffs. In this case, however, there is no such danger of collusion, and no such cumulative and implicitly conflicting pecuniary claims. On the contrary, if M.C.L.A. Secs. 440.-9503 and 440.9504 are unconstitutional, neither the named plaintiffs, nor others similarly situated, nor the defendants have any legally protectable interest in maintaining it, or at least such interest that would render this suit inappropriate as a class action. Moreover, the amount of increase in cost and reduction in the availability of credit which would follow a declaration that the statutes in question are unconstitutional are highly speculative and thus cannot be said to represent the identifiable concrete legal interest contemplated by Rule 23(a)(4). The fact that people may differ over the policy implications of a constitutional suit does not render such a suit inappropriate for a class action. Snyder v. Board of Trustees, 286 F.Supp. 927, 931 (N.D.Ill.1968). The requisites of Rule 23(a) having been met, the court must next inquire whether the requirements of one of the subsections of Rule 23(b) are met. The court finds that the parties opposing the class have acted or refused to act on grounds generally applicable to the class, so that declaratory and injunctive relief may be appropriate for the class as a whole. F.R.Civ.P. 23(b)(2). The defendants have certainly acted or refused to act on grounds “generally applicable” to the class. The defendants assert the right under the authority of Michigan statutes to repossess automobiles in the possession of the members of the plaintiffs' class without previous notice and opportunity for hearing. In addition, the plaintiffs have requested declaratory and corresponding final injunctive relief. The present case is a good example of the civil rights action for which Rule 23(b)(2) was intended. Thomas v. Clarke, 54 F.R.D. 245, 251-252 (N.D.Ill.1971). In sum, the court finds that all the requirements of Rule 23(a) are met, that the requirements of Rule 23(b)(2) are also met, and that therefore this case is properly maintainable as a class action. Barnes v. Board of Trustees, 369 F.Supp. 1327, 1332-1333, (W.D.Mich.1973). B. There is a question as to whether it is necessary to give some form of notice to the absent members of the plaintiffs’ class before proceeding with this case. Courts have split where they have given full consideration to the issue of notice in 23(b)(2) class action suits. See, generally, Miller, “Problems of Giving Notice in Class Actions,” 58 F.R.D. 313-317 (1973) , and cases cited Id. at 313 nn. 2 and 3. See also 7A Wright and Miller, Federal Practice and Procedure § 1786 at 142-144; 3B Moore’s Federal Phactice Par. 23.72(2) (1974, Supp.1973). The Supreme Court recently considered the question of notice to the members of a class in a 23(b)(3) action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) . Although the decision did not specifically apply to 23(b)(2) class actions, the Court established an analytical framework within which to consider the issue of notice to a 23(b) (2) class. Rule 23 was extensively revised in 1966. At that time, many basic constitutional principles concerning the due process requirements of notice and opportunity to be heard in the course of a suit had already been developed. See, e.g., Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962). These principles were carefully considered by the drafters, and Rule 23 was drawn with due process requirements in mind. Proposed Rules of Civil Procedure, Rule 23, Advisory Committee’s Note, 39 FRD 98, 107 (1966). Although it is axiomatic that a rule of civil procedure cannot take precedence over the Due Process Clause of the Fifth Amendment, the Supreme Court’s approach in Eisen indicates that Rule 23 is presumptively valid as comprehending adequate due process protections. Rule 23 thus provides the starting point and the framework for deciding whether notice is required in the case presently before the court. Rule 1 declares that the basic objective of the Federal Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action.” Rule 23, and specifically Rule 23(b)(2), is in accord with this general philosophy. Class actions are a relatively inexpensive, expeditious, and socially desirable way for a few named plaintiffs, usually represented by highly professional public interest attorneys, to raise substantial questions concerning the constitutional or statutory rights of a large number of people and to secure comprehensive and just remedies where rights are shown to be violated. The reasons why constitutional class actions have become so important in recent years are not hard to find. In the area of constitutional adjudication, the federal courts have become, as the somewhat belated result of the new structure of law which emerged in the post-Civil War era, the guardian and guarantor of fundamental individual rights against public and private abuses of power. Mitchum v. Foster, 407 U.S. 225, 238-239, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). However, since the Civil War, the population of our great nation has grown to over 200,000,000 people. Our economic, social, political, and governmental system has become extremely complex, and has created challenges to our individual rights and liberties scarcely dreamed of a century ago. The class action was readily adapted to give the courts a modern procedural tool to meet these novel challenges. A class action raising a constitutional issue is a “We, the People” action, and therefore should be of first and vital concern to the federal judiciary. Essentially, a “We, the People” action is a means by which groups of people who believe they are suffering similar deprivations of their rights and liberties can easily gain access to federal courts and can receive more rapid disposition of their claims. The whole point of having a constitution in a democratic society is “to establish justice and to secure domestic tranquility,” U. S.Const., Preamble, and indeed if we do not establish justice through law we shall have no domestic tranquility. If people do not have ready access to the courts for the adjudication and redress of their grievances, then their frustrations increase, and both public and private social life tends to become infected, with senseless mass violence the likely and all too frequent result. By helping to provide ready access to federal courts for substantial numbers of people, the class action tends to alleviate the pressures on the social order. In many class actions, the most important aspect of the suit is the number of people and situations which are reached by the remedial power of the court. The substantive questions could nearly always be raised by one or a few named plaintiffs. However, a declaratory judgment binds only the named parties, and defendants may in some cases find petty distinctions in order to resist applying the terms of the judgment to non-parties to the original action. In such cases, aggrieved persons must bring additional suits or continue to suffer infringement of their basic rights. A comprehensive 23(b)(2) plaintiffs’ class applies a judgment automatically to those whose rights have been violated, and normally avoids the necessity for a multiplicity of suits. The class action efficiently focuses attention on the basic constitutional or statutory questions which are common to the class and are the nub of the problem. While courts are naturally sensitive to vital constitutional and statutory distinctions, in class actions they necessarily de-emphasize those petty factual differences which exist among the cases of individual plaintiffs. The broad questions of social policy and individual rights and liberties are brought to the forefront, where they ought to be. The court is aware of some current dissatisfaction with the number and importance of successful constitutional class action suits in recent years. It is indisputable that many of these cases are complicated and put strains on the resources of the courts. However, recent events and the large number of successful suits strongly confirm the judgment of the drafters of Rule 23 that 23(b)(2) class actions are desirable and even necessary as a matter of enlightened public policy. The only apparent error of the drafters was their assumption as to the extent of the problem. For the reasons stated above, this court earnestly submits that the ostrich-like response of closing our eyes and the courthouse doors has little to recommend it and can substantially contribute to disruption of domestic tranquility. Although Rule 23(c)(2) specifically requires the court to give the best notice practicable to absent members of a 23(b)(3) class, the Rule imposes no such mandatory notice requirements in 23(b)(2)- actions. Rather, Rule 23(d)(2) operates to make notice discretionary with the court in 23(b)(2) actions, and a number of factors are set forth which are a guide to the court. There are good reasons for the distinction between 23(b)(2) and 23(b)(3) class actions in the matter of notice. 23(b)(3) actions involve common damage claims or other property interests. A decision on the merits binds all members of the class. Where there is a fixed fund or property, or where a defendant may not be able to pay a large judgment, the interests of the individual members of the class may partially conflict with one another. Since it is unfair to adjudicate an individual’s right to property or claim for damages in his absence, notice is essential. In such cases, the individual is specifically given the right to be excluded from the class, Rule 23(c)(2)(A). This right to be excluded from the class was emphasized by the Supreme Court when it held that notice to individual members of a 23(b)(3) class was required. Eisen, supra, 417 U.S. at 173, 94 S.Ct. 2140, 40 L.Ed.2d 732. In contrast, actions under 23(b)(2) involve broad questions of constitutional or statutory law and public policy. In the present case, as in most 23(b)(2) actions, absent class members have no substantive property interest or legal claims upon the defendants which can be adversely affected by the suit. With the possible exception of some policy disagreements, the plaintiffs’ class is unified and cohesive. To the extent that absent class members might, as a matter of policy, disfavor the position taken by the named plaintiffs in this case, the defendants are more than adequate stand-ins for the purpose of presenting the policy arguments to the court. As noted above, policy positions are not legal interests. Thus, the fact that some members of the class might object to the position of the named plaintiffs will not prevent the suit from being maintained as a class action. More importantly, absent members of the 23(b)(2) class are not specifically given a right to withdraw from the suit, and no such right has been recognized by the courts. See 7A Wright and Miller, Federal Practice and Procedure 144. In the absence of special circumstances, notice to the members of a 23(b)(2) class serves little or no useful purpose in the context of the action. On the other hand, a requirement of giving notice to absent class members would impose substantial burdens on the parties and necessarily involve procedural complications. Where notice is required to be given, the court must determine the precise purpose, content, and form of the notice, and establish appropriate time periods. More important, the plaintiffs must ordinarily bear the cost of notice. Eisen, supra. As a practical matter, the named plaintiffs in class actions raising broad constitutional or statutory questions simply cannot afford to pay for notice to absent class members, and a requirement that notice be given effectively prevents the suit from being maintained as a class action. Furthermore, apart from the interests of the parties, the giving of notice may ultimately have a substantial impact upon the court. Where named plaintiffs give actual notice, the absent class members usually must direct their replies to the clerk of the court. In the present case, which concerns the terms and enforcement of security interests in automobiles, no matter how the notices were worded, large numbers of people would call the court for information concerning the suit and their obligations respecting it. Much time would be spent answering these inquiries. Where a particular case required such a commitment of court resources to prevent serious prejudice or to advance a suit toward decision, the court would not hesitate to make an appropriate order. However, before ordering actual notice, the court ought to be able to inquire whether it is necessary under the circumstances. The drafters of Rule 23 took most or all of these factors into account when they established the notice requirements for 23(b)(2) class actions. Considering the marginal benefits to be derived from notice, and the high cost to the parties and the court, they decided that notice to absent class members need not be given in 23(b)(2) class actions in the absence of special circumstances. It is probably impossible to draw an exhaustive list of those special circumstances which would indicate that notice ought to be given, but some examples may be suggested. One such circumstance might be the presence of a damage claim in connection with a suit under 42 U.S.C. Sec. 1983. Another might be the presence of a defendant class. Where a plaintiff class seeks a declaratory judgment and injunctive relief, Rule 23(d)(2) sets forth the basic factors which the court ought to consider in determining whether notice is required. The Rule indicates that the major purposes for notice in a 23(b)(2) action are the protection of members of the class and the fair conduct of the suit. These are plainly derived from the Due Process Clause. Notice may be given of any step in the action, or of the extent of the proposed judgment, but such notice need not be given to all members of the class. At the inception of the suit, the court might require notice in order to give members of the class the opportunity to signify whether representation by the named plaintiffs is fair and adequate. Notice might invite members of the class to intervene to present claims or defenses, or otherwise come into the action to provide, for example, a broader representation of named plaintiffs, or to submit views as amici curiae. In the case presently before the court, is there any special circumstance which would require notice to the members of the plaintiffs’ class? The court has already found that the named plaintiffs and their attorneys adequately represent the class. Considering the experience and expertise of the plaintiffs’ attorney, any objection to the adequacy of his representation would be frivolous at best. There is no compelling reason why the court ought to invite absent class members to intervene. Certainly individual class members have no absolute right to intervene in a class action. The very existence of Rule 23 negatives the idea that absent members of a 23(b)(2) class are indispensible under Rule 19(b). In the circumstances of this case and probably most or all other 23(b)(2) actions, no absent class member is even “necessary” under Rule 19(a). Individual class members are thus merely “permissive” parties, and the court may in its discretion refuse to allow them to intervene personally. The court can see no useful purpose to be served by inviting absent members of the plaintiffs’ class in this case to intervene to present additional claims or to intervene for other reasons. The nature of the complaint and relief sought are such that, apart from the constitutional issue raised, no individual claim for damages or specific performance against any of the defendants will be affected by this suit. The presentation of additional individual claims would complicate the suit and protract it to the detriment of the class as a whole. The named plaintiffs are typical of the class, and no additional plaintiffs are necessary. The issues involved in the suit have been fully canvassed in the cases and literature, and additional supplementation by persons with amicus curiae status is not needed. Thus, the court finds no special circumstances in this case which require the giving of notice to absent members of the plaintiffs’ class. Finally, reviewing Rule 23 and its application to the present case, the court finds that the provisions made by Rule 23(d)(2) for discretionary notice in 23(b)(2) class actions are consonant with the requirements of the Due Process Clause of the Fifth Amendment. In the leading case of Mullane, supra, the Supreme Court stated that notice and opportunity for hearing had to be “appropriate to the nature of the case.” 339 U.S. at 313, 70 S.Ct. at 657. With regard specifically to the notice requirement, the Court cautioned that “due regard” was to be paid to “the practicalities and peculiarities of the case.” Id. at 314, 70 S.Ct. at 657. The Court then restricted notice requirements in the case before it “in view of the character of the proceedings and the nature of the interest . . . involved . ” Id. at 317, 70 S.Ct. at 659. In this plaintiffs’ class action raising serious constitutional questions and seeking only declaratory and injunctive relief, the absent class members have a de minimis interest in receiving actual notice of the suit, but they have a substantial interest in seeing the case proceed to judgment as a class action. In view of the character of the proceedings and the nature of the interests involved, Rule 23 sets forth constitutionally permissible standards concerning notice to the absent members of the class. C. The court concludes that the cases of Watson against Branch County Bank and Gatson against Security National Bank are properly maintainable as class actions. The plaintiffs’ class in these cases is finally defined as the named plaintiffs and other natural persons similarly situated whose automobiles are subject to repossession and final disposition by the respective named defendants under color of M.C.L.A. Secs. 440.9503 and 440.9504 without resort to judicial process. III. The primary issue in this case is whether any legal process is due the plaintiffs from the state, whether, that is, the plaintiffs are entitled under the circumstances to any legal process at all in conjunction with the repossession of their automobiles, and if so, in what form and at what time. The Due Process Clause of the Fourteenth Amendment guarantees several fundamental rights. Three specifically mentioned substantive rights are life, liberty, and property. Necessarily associated with these rights, and implicit in the Clause considered as a whole, is a right to the pursuit of happiness. See Decl. of Ind. Also fundamental is a right to legal process, a right ultimately necessary to secure the great substantive rights. A. There is no doubt that the “repossession” of an automobile by a secured party deprives a person of a “property interest” within the meaning of the Due Process Clause. Board of Regents v. Roth, 408 U.S. 564, 576-577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). At the very least, “repossession” in accordance with UCC 9-503 deprives a person of the possession and use of his automobile, cf., Sniadach v. Family Finance Corp., 395 U.S. 337, 339, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and the sale of the automobile in accordance with UCC 9-504 would deprive the owner of title. B. The constitutional obligation of government to provide regular judicial process for the settlement of private disputes is of ancient lineage. The Magna Carta, cap. 39, provided, “No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers, or by the law of the land.” This provision did not apply only to actions of the King for purposes of state, but extended to private disputes as well. J. Holt, Magna Carta 227-228 (1965). More important, cap. 40 of the Magna Carta provided, “To no one will we sell, to no one will we deny, or delay right or justice.” This provision required that legal process be afforded and was intended to set a standard for the regular and impartial administration of royal justice in private as well as public actions. Private litigants were further aided by the requirements that the common pleas be held in a fixed place, which came to be Westminister, and that certain land cases be regularly held in the counties in which they arose. Caps. 17, 18, 19. Although the Magna Carta was not immediately and fully implemented, many came to assume that the document embodied immutable principles of just, limited, constitutional government. Blackstone, who wrote on the eve of the American Revolution, recognized the necessity of providing legal process to resolve disputes. He stated that there were three absolute rights of Englishmen, the rights of life, liberty, and property. He further noted that these substantive rights would have been declared in vain unless the constitution had provided a method to secure then actual enjoyment. This method was the establishment of “certain other auxiliary subordinate rights of the subject, [to] serve principally as outworks or barriers, to protect and maintain inviolate the three great and primary rights. . . . ” 1 Commentaries on the Laws of England 129, 140-141 (Óhristian ed., 1822). One of the protective “outworks or barriers” mentioned by Blackstone was legal process: “A third subordinate right of every Englishman is that of applying to the courts for the redress of injuries. Since the law is in England the Supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The emphatical words of magna carta, spoke in the person of the king, who in judgment of law (says Sir Edward Coke *) is ever present and repeating them in all his courts, are these: nulli vendemus, nulli negabimus, aut differemus rectum vel justiciam [to no one will we sell, to no one will we deny, or delay right or justice]: ‘and therefore every subject,’ continues the same learned author [Coke], ‘for every injury doné to him in bonis, in terris, vel persona [in goods, in lands, or person], by any other subject, be he ecclesiastical or temporal, without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.’ ” (Emphasis supplied.) * 2 Inst. 55. The generation of patriotic Americans which made the Revolution and wrote the Constitution and Bill or Rights read Coke and Blackstone thoroughly, and developed their own appreciation for due process of law. Among the stated causes of the Revolution were King George’s obstruction of the administration of justice by refusing his assent to laws for establishing judiciary powers, and the subjection of the colonial judges to his own will. Dec. of Ind.. As if in counterpoint to the abuses of a royal sovereign, within a decade of the Revolution Daniel Shays and bands of economically strapped farmers forcibly closed Massachusetts courts to prevent the foreclosure of mortgages. The Constitution provided for a separate, independent judiciary, and endowed the federal government with adequate powers, to meet domestic emergencies. The First Congress established federal courts with appropriate jurisdiction. The Fifth Amendment carried forward the tradition of Magna Carta. In Marbury v. Madison [5 U.S. (1 Cr.) 137, 2 L.Ed. 60], decided by the Supreme Court in 1803, the question was whether the Court ought to issue a mandamus to the Secretary of State requiring him to deliver the plaintiff’s commission as a justice of the peace to the District of Columbia. After determining that Marbury had a right to his office and commission, the Court went on to determine that the law gave him a legal remedy to redress the wrongful withholding of the commission. Chief Justice John Marshall stated: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. “In the 3d vol. of his Commentaries (p. 23) Blackstone states two cases in which a remedy is afforded by mere operation of law. ‘In all other cases,’ he says, ‘it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded.’ And afterwards (p. 109, of the same vol.), he says, ‘I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall, for the present, only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognisance of either the ecclesiastical, military or maritime tribunals, are, for that very reason, within the cognisance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that .every right, when withheld, must have a remedy, and every injury its proper redress.’ “The government of the United States has been emphatically termed a government of laws, and not of ment. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” 5 U.S. (1 Cr.) 137, 163, 2 L.Ed. 60 (1803). (Emphasis supplied.) Although the original Constitution and Bill or Rights contained few limitations on state power, the Fourteenth Amendment and its implementing statutes wrought a “basic alteration in our federal system. ... As a result of the new structure of law that emerged in the post-Civil War era ., the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established.” Mitchum v. Foster, 407 U.S. 225, 238, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705h (1972). In enacting the Civil Rights Act of 1866 and its successor, the Civil Rights Act of 1871, the Congress was directly and immediately concerned with deprivations of private rights which were not being effectively prevented or redressed by Southern state governments. As Representative Perry stated in 1871, “Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices . . . \_A]ll the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal to justice.” Cong.Globe, 42d Cong., 1st Sess., App. 76, quoted in Mitchum, supra, 407 U.S. at 241, 92 S.Ct. 2151, 2161, 32 L.Ed.2d 705. (Emphasis supplied). As the Equal Protection Clause guarded against invidious discrimination in law and practice, the Due Process Clause and the implementing congressional statutes sought to guarantee that process would be available for the just resolution of private disputes. Throughout the nineteenth and first half of the twentieth century, the Supreme Court continued to give meaning to the phrase “due process of law.” See cases cited in Boddie v. Connecticut, 401 U.S. 371, 377-378 and 377 n.3, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Hovey v. Elliott involved a suit on an alleged private contract. After a court order that the defendant pay funds into the registry of the court was disobeyed, the defendant was found in contempt, his answer was stricken, and judgment on the contract was decreed for the plaintiffs. In finding this decree a violation of due process, the Court said, “the decree awarded the property of the defendant to the complainants upon the hypothesis of fact that by contract the defendant had transferred the right in or to this property to the complainant. If the court had power to do this by denying the right to be heard to the defendant, what plainer illustration could there be of taking property of one and giving it to another without hearing or without process of lawl” 167 U.S. 409, 418-419, 17 S.Ct. 841, 845, 42 L.Ed. 215 (1897). (Emphasis supplied.) In Brinkerhoff-Faris Trust & Savings Co. v. Hill, Justice Brandeis, speaking for the Court, said, “Whether acting through its judiciary or through its leg islature, a state may not deprive a person of all existing remedies for the enforcement of a right, which the state has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.” 281 U.S. 673, 682, 50 S.Ct. 451, 455, 74 L.Ed. 1107 (1930). (Emphasis supplied.) In other cases concerning administrative and prejudgment remedies, the Court generally upheld prejudgment seizures, providing that opportunity was given for ultimate judicial determination of liability, and that this opportunity was adequate. See cases cited and discussion in Mitchell, supra, 416 U.S. at 611-614, 94 S.Ct. 1895, 40 L.Ed.2d 406. The modern Supreme Court has recognized due process of law as a separate right to be measured by federal constitutional standards. In Cohen v. Beneficial Industrial Loan Corp., for example, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), one issue was the constitutionality under the Due Process Clause of a New Jersey statute making certain classes of plaintiffs in stockholder derivative suits liable for all expenses and attorneys’ fees of the defense if they failed to make good their complaint. The plaintiffs argued that this provision violated both the procedural and substantive aspects of the Due Process Clause: procedurally, by unreasonably qualifying and in effect denying access to the courts for legal wrongs; and substantively, by imposing arbitrary impediments without reasonable relation to aiiy existing abuses. 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1532. The Court accepted the proposition that the Due Process Clause applied. It concluded that a “state may set the terms on which it will permit litigations in its courts,” but indicated through its discussion that these terms must meet the minimum requirements of the Due Process Clause, 337 U.S. at 551-552, 69 S.Ct. 1221, 1228, 93 L.Ed. 1532. In more recent cases, the Supreme Court has been closely exploring the limits of the due process guarantee. A majority of the Court has rejected the view that a statutorily created property right can be conditioned on a statutory limitation of procedural due process protections. Rather, once the right exists, the procedures established for its impairment or deprivation must meet constitutional standards. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (April 16, 1974). Boddie v. Connecticut, supra, held that a State may not, consistent with the obligations imposed upon it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve the legal relationship of marriage without affording all citizens access to the means it has prescribed for doing so, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113. The Court added that it did “not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual.....” Id. at 382, 91 S.Ct. at 788. United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), concerned the constitutionality of the requirement that a petitioner in bankruptcy pay a fifty dollar filing fee as a prerequisite to receiving a discharge. The Court noted that Congress is specifically granted constitutional authority to establish uniform laws on bankruptcies, and that the filing fee had a rational basis in the Congressional scheme. Discharge in bankruptcy was a legislatively created benefit, and the individual had no constitutional right to such a benefit. Finding that the petitioner’s situation would not be altered in any constitutional sense if he did not receive a discharge, the Court held, in effect, that discharge in bankruptcy was not an interest cognizable by the Due Process Clause. Id. at 441-449, 93 S.Ct. 631, 34 L.Ed.2d 626. Property interests, unlike' discharges in bankruptcy, are specifically recognized in the Due Process Clause. The Supreme Court has in recent years considered procedural due process requirements in cases involving private disputes of contracts and property. See, e. g., Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Sniadach, supra; D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Fuentes, supra; Mitchell, supra. Most of these cases are discussed more fully below. The Anglo-American legal tradition and recent cases have firmly established that due process is not an “entitlement” similar to those in the area of property which the state may originally withhold altogether in its uncontrolled discretion. Rather, the state is constitutionally required to provide process of law in accordance with the mandates of the Fourteenth Amendment. This is emphatically the case to the extent that there is no independent federal remedy for what is ordinarily recognized in state law as a civil wrong. However, the constitutional duty of the state to provide process of law is not unlimited. Certainly the state need not, and, practically, could not, require resort to process for the resolution of every private dispute. Whether process is due depends upon the application of basic constitutional principles to the case at hand. As Justice Harlan said for the Supreme Court in Boddie, supra, “The State’s obligations under the Fourteenth Amendment are not simply generalized ones; rather, the State owes to each individual that process which, in light of the values of a free society, can be characterized as due.” 401 U.S. at 380, 91 S.Ct. at 787. This case involves the self-help repossession of secured tangible personal property on the debtor’s alleged default. Is process due from the state under these circumstances? A basic purpose of American constitutionalism, and the Due Process Clause in particular, is to replace violent anarchy with a just and orderly society. The Supreme Court has stated: “Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a ‘legal system,’ social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the ‘state of nature.’ ” Boddie, supra, 401 U.S. at 374, 91 S.Ct. at 784. (Emphasis supplied.) Historically, one of the great missions of the law has been to bring disputes concerning the possession of real and personal property under the control of legal institutions. Except for personal injury, nothing has been so productive of contention and violence as the dispossession of tangible property. The taking of goods from another’s possession, without the latter’s contemporaneous consent, necessarily involves the hostile physical invasion of the possessor’s personal territory, and is a serious assault upon his dignity, privacy and self-esteem. Such an invasion naturally tends to excite emotions and to provoke violent retaliation. In the Anglo-Saxon period of English history, the law recognized, indeed, was almost entirely based upon, the concept of the personal “peace,” or grith. The grith was a person’s psychological sphere of interest, marked, with regard to tangibles, by possession and control. The concern for the integrity of the grith was part of the common law's concern for the preservation of human dignity in the context of a stable social order. Where a person’s “peace” was respected, there was an absence of violence, and the person’s “peace”, in its modern connotation, prevailed. In contrast, where the personal peace was breached or broken, there was contention and violence. Because of a lack of regular, legitimate, centralized authority and power in the Anglo-Saxon period, breaches of personal peace were often legally redressed by self-help, by licensed violenced. But if the Anglo-Saxons allowed distraint in most areas of debtor-creditor relations, it was only because they lacked legal institutions to support a different rule. A significant growth in the rule of law in the modern sense occurred when the king and the people attempted to create a communal peace or, as enforced by the king and his officers, a peace of the realm. J. A. E. Joliffe, The Constitutional History of Medieval England from the English Settlement to 1485, 113-116 (4th ed. 1961). The gradual substitution of regularized justice for uncontrolled private power marked the progress of English society towards order and a higher civilization. The concept of the personal “peace” remained implicit in the Anglo-American law, and was apparently recognized in Michigan during the nineteenth century, for example, in cases involving stray or trespassing animals. Wandering animals were a constant problem in a society of small farmers, and the remedies were closely regulated by statute. When a farmer found a trespassing animal upon his lands, he could impound it and, if notice given according to the statute failed to produce the owner, he could sell it. An owner’s self-help repossession of his impounded animal was referred to as a “rescue.” When an impounded animal was rescued, the statute gave the farmer an action for damages and forfeiture of five to twenty dollars as against the animal's owner. In one case, the owner rescued his impounded animal from the farmer’s barn without violence or menacing or threatening words. The farmer sued for damages under the statute, but the owner claimed that the statute did not apply because the animal had been repossessed without violence. The Michigan Supreme Court, after observing that distraint had existed at common law, held that the statute applied because “such a taking is esteemed in law a violent taking.” Hamlin v. Mack, 33 Mich. 103, 108 (1885). (Emphasis supplied.) The Michigan Supreme Court thus followed the wisdom of the common law in recognizing that the repossession of tangible personal property from another even under a claim of right is always a violent transaction. With the modern concentration of giant national and international corporations, characterized, like modern government, by heavy layers of impersonal bureaucracy, we are slipping backwards into disorder and fundamentally uncivilized business practices. Uncontrolled private corporate power imposes unilateral conditions and requirements on individuals in the name of contracts. Such extreme impositions necessarily erode the personal “peace,” or grith, which the old law struggled for centuries to protect. The Uniform Commercial Code allows self-help repossession by creditors “if this can be done without breach of the peace,” 9-503. Breach of the peace in this context usually means forcible entry into a building. By failing to establish a standard of conduct which takes into account the personal peace, the human self-esteem and dignity which surrounds an individual’s personal possessions, the UCC departs from the ancient common law conception of the self-help repossession as a “violent taking.” To this extent, the UCC withdraws the protection of the peace of the community from the personal peace which was the foundation of the old common law. The UCC substitutes that licensed violence which even the Anglo-Saxons strove to replace with a rule of law. In the modern as in the ancient period, licensed but uncontrolled private violence is apt