explaining that a state garnishment statute was vulnerable to constitutional attack under the Fourteenth Amendment because the plaintiff’s “property[] was impounded and, absent a bond, put totally beyond use during the pendency of the litigation on the al- leged debt”
How later courts described this case
- explaining that a state garnishment statute was vulnerable to constitutional attack under the Fourteenth Amendment because the plaintiff’s “property[] was impounded and, absent a bond, put totally beyond use during the pendency of the litigation on the al- leged debt”
- holding that a Georgia statute was unconstitutional because it allowed the impounding of the defendant’s bank account “during the pendency of the litigation on the alleged debt” without sufficient safeguards against an unduly burdensome deprivation of property
- holding that a Georgia garnishment statute was unconstitutional, and noting that unlike the statute in Mitchell, the Georgia statute allowed a writ of garnishment to enter before a judge had reviewed the garnishor’s application
- holding that the decisions of the circuit court may also foreclose constitutional challenges
Written by the judges who cited it.
The opinion
Mr. Justice Blackmun,
with whom Mr. Justice Rehnquist joins,
dissenting.
The Court once again — for the third time in less than three years — struggles with what it regards as the due process aspects of a State’s old and long-unattacked commercial statutes designed to afford a way for relief to a creditor against a delinquent debtor. On this third occasion, the Court, it seems to me, does little more than make very general and very sparse comparisons of the present case with Fuentes v. Shevin, 407 U. S. 67 (1972), on the one hand, and with Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974), on the other; concludes that this case resembles Fuentes more than it does Mitchell ; and then strikes down the Georgia statutory structure as offensive to due process. One gains the impression, particularly from the final paragraph of its opinion, that the Court is endeavoring to say as little as possible in explaining just why the Supreme Court of Georgia is being reversed. And, as a result, the corresponding commercial statutes of all other States, similar to but not exactly like those of Florida or Pennsylvania or Louisiana or Georgia, are left in questionable constitutional status, with little or no applicable standard by which to measure and determine their validity under the Fourteenth Amendment. This, it seems to me, is an undesirable state of affairs, and I dissent. I do so for a number of reasons:
1. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969), mentioned in passing by the Court in its present opinion, ante, at 605-606, was correctly regarded by the Georgia Supreme Court, 231 Ga. 260, 263-264 , 201 S. E. *615 2d 321, 323 (1973), as a case relating to the garnishment of wages. The opinion in Sniadach makes this emphasis:
“We deal here with wages — a specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process.” 395 U. S., at 340 .
It goes on to speak of possible “tremendous hardship on wage earners with families to support,” ibid., and the “enormous” leverage of the creditor “on the wage earner,” id., at 341 . Sniadach should be allowed to remain in its natural environment — wages—and not be expanded to arm’s-length relationships between business enterprises of such financial consequence as North Georgia Finishing and Di-Chem.
2. The Court, ante, at 606, regards the narrow limitations of Sniadach as affected by Fuentes . It also bows to Morrow Electric Co. v. Cruse, 370 F. Supp. 639 (ND Ga. 1974), and the three-judge holding there that the Georgia statutes before us are unconstitutional. Ante, at 605 n. 4. Indeed, perhaps Sniadach for a time was so expanded (somewhat surprisingly,- I am sure, to the Sniadach Court) by the implications and overtones of Fuentes . But Mitchell came along and Morrow was more than three months pre-Mitchell. Sniadach’s expansion was surely less under Mitchell than it might have appeared to be under Fuentes .
3. I would have thought that, whatever Fuentes may have stood for in this area of debtor-creditor commercial relationships, with its 4-3 vote by a bobtailed Court, it was substantially cut back by Mitchell . Certainly, Me. Justice Stewart, the author of Fuentes and the writer of the dissenting opinion in Mitchell , thought so:
“The deprivation of property in this case is iden *616 tical to that at issue in Fuentes , and the Court does not say otherwise.” 416 U. S., at 631 .
"In short, this case is constitutionally indistinguishable from Fuentes v. Shevin , and the Court today has simply rejected the reasoning of that case and adopted instead the analysis of the Fuentes dissent.” Id., at 634.
“Yet the Court today has unmistakably overruled a considered decision of this Court that is barely two years old .... The only perceivable change that has occurred since the Fuentes case is in the makeup of this Court.” Id., at 635.
Surely, Mr. Justice Brennan thought so when he asserted in dissent that he was “in agreement that Fuentes . . . requires reversal” of the Louisiana judgment. Id., at 636. And surely, Mr. Justice Powell thought so, substantially, when, in his concurrence, he observed:
“The Court’s decision today withdraws significantly from the full reach of [the Fuentes] principle, and to this extent I think it fair to say that the Fuentes opinion is overruled.” Id., at 623.
I accept the views of these dissenting and concurring Justices in Mitchell that Fuentes at least was severely limited by Mitchell , and I cannot regard Fuentes as of much influence or precedent for the present case.
4. Fuentes , a constitutional decision, obviously should not have been brought down and decided by a 4-3 vote when there were two vacancies on the Court at the time of argument. It particularly should not have been decided by a 4-3 vote when Justices filling the vacant seats had qualified and were on hand and available to participate on reargument. 1 Announcing the constitutional *617 decision, with a four-justice majority of a seven-justice shorthanded Court, did violence to Mr. Chief Justice Marshall’s wise assurance, in Briscoe v. Commonwealth’s Bank of Kentucky, 8 Pet. 118, 122 (1834), that the practice of the Court “except in cases of absolute necessity” is not to decide a constitutional question unless there is a majority “of the whole court.”
The Court encountered the same situation a century ago with respect to the Legal Tender Cases; mishandled the decisional process similarly; and came to regret the error. Originally, in Hepburn v. Griswold, 8 Wall. 603 (1870), 2 the Court, assertedly by a 6-3 vote, with one vacancy, held the Legal Tender Act of 1862, 12 Stat. 345 , to be unconstitutional with respect to prior debts. Mr. Justice Grier, who was in failing health, was noted as concurring. 8 Wall., at 626 . It was stated that the case “was decided in conference” on November 27, 1860, and the opinion “directed to be read” on January 29,1870. Ibid. Mr. Justice Grier, however, had submitted his resignation to the President in December 1869, effective February 1, 1870, and it had been accepted on December 15. The Justice last sat on January 31. 8 Wall., at vii -viii. The opinion and judgment in Hepburn actually were rendered on February 7, when Mr. Justice Grier was no longer on the bench.
A year later, with the two vacancies filled, the Court, by a 5-4 vote, overruled Hepburn and held the Legal Tender Act constitutional with respect to all debts. Legal Tender Cases, 12 Wall. 457 (1871). The Court said:
“That case [Hepburn v. Griswold] was decided by a divided court, and by a court having a less number of *618 judges than the law then in existence provided this court shall have. . . . We have been in the habit of treating cases involving a consideration of constitutional power differently from those which concern merely private right [citing Briscoe v. Commonwealth’s Bank of Kentucky]. We are not accustomed to hear them in the absence of a full court, if it can be avoided.” Id., at 553-554 .
The failure in Hepburn to recall or adhere to the practice announced by the Marshall Court resulted in confusion, prompt reversal of position, embarrassment, and recrimination. See the opinion of Mr. Chief Justice Chase in dissent. 12 Wall., at 572 . 3
Later, Mr. Justice Burton called attention to this lapse and heartily endorsed the practice of withholding decision on a constitutional issue by less than a majority of a full Court, that is, today, by less than five votes when vacancies exist and are waiting to be filled or have been filled. Burton, The Legal Tender Cases: A Celebrated Supreme Court Reversal, 42 A. B. A. J. 231 (1956), reprinted as Chapter IX in The Occasional Papers of Mr. Justice Burton (E. Hudon ed. 1969). We allowed his advice, as well as that of the Marshall Court, to go unheeded when we permitted Fuentes to come down with only four supporting votes when a nine-Justice Court already was available on any reargument.
The admonition of the Great Chief Justice, in my view, should override any natural, and perhaps understandable, eagerness to decide. Had we bowed to that wisdom when *619 Fuentes was before us, and waited a brief time for reargument before a full Court, whatever its decision might have been, I venture to suggest that we would not be immersed in confusion, with Fuentes one way, Mitchell another, and now this case decided in a manner that leaves counsel and the commercial communities in other States uncertain as to whether their own established and long-accepted statutes pass constitutional muster with a wavering tribunal off in Washington, D. C. This Court surely fails in its intended purpose when confusing results of this kind are forthcoming and are imposed upon those who owe and those who lend.
5. Neither do I conclude that, because this is a garnishment case, rather than a lien or vendor-vendee case, it is automatically controlled by Sniadach. Sniadach, as has been noted, concerned and reeks of wages. North Georgia Finishing is no wage earner. It is a corporation engaged in business. It was protected (a) by the fact that the garnishment procedure may be instituted in Georgia only after the primary suit has been filed or judgment obtained by the creditor, thus placing on the creditor the obligation to initiate the proceedings and the burden of proof, and assuring a full hearing to .the debtor; (b) by the respondent’s statutorily required and deposited double bond; and (c) by the requirement of the respondent’s affidavit of apprehension of loss. It was in a position to dissolve the garnishment by the filing of a single bond. These are transactions of a day-to-day type in the commercial world. They are not situations involving contracts of adhesion or basic unfairness, imbalance, or inequality. See D. H. Overmyer Co. v. Frick Co., 405 U. S. 174 (1972); Swarb v. Lennox, 405 U. S. 191 (1972). The clerk-judge distinction, relied on by the Court, surely is of little significance so long as the court officer is not an agent of the creditor. The Georgia system, for me, affords commercial entities all the protection *620 that is required by the Due Process Clause of the Fourteenth Amendment.
6. Despite its apparent disclaimer, the Court now has embarked on a case-by-case analysis (weighted heavily in favor of Fuentes and with little hope under Mitchell) of the respective state statutes in this area. That road is a long and unrewarding one, and provides no satisfactory answers to issues of constitutional magnitude.
I would affirm the judgment of the Supreme Court of Georgia.
Me. Chief Justice Burgee dissents for the reasons stated in numbered paragraph 5 of the opinion of Ms. Justice Blackmun.
Fuentes was decided June 12, 1972. Mr. Justice Powell and Mr. Justice Rehnquist had taken their respective seats as Mem *617 bers of the Court five months before, on January 7. 404 U. S. xi -xvii. Fuentes had been argued November 9, 1971.
See also Broderick’s Executor v. Magraw, 8 Wall. 639 (1870).
Mr. Chief Justice Hughes described the result in the Legal Tender Cases as one of “three notable instances [in which] the Court has suffered severely from self-inflicted wounds.” C. Hughes, The Supreme Court of the United States 50 (1928). The others he named were the Dred Scott decision, Scott v. Sandford, 19 How. 393 (1857), and the Income Tax Case, Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429 (1895), on rehearing, 158 U. S. 601 (1895).