Reply Brief — Trainor v. Hernandez

In THe

— Court of the Gnited

Ocroser Term, 1975

No. 75-1407

JAMES TRAINOR, et al.,

Appellants,

vs.

JUAN HERNANDEZ, et al.

Appellees.

On Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

BRIEF AND ARGUMENT OF APPELLANTS

JAMES TRAINOR AND VIVIAN O’MALLEY

WILLIAM J. SCOTT,

Attorney General of the State of Illinois,

160 North LaSalle Street, Suite 900,

Chicago, Illinois 69601 (312) 793-3500,

/ Attorney for Appellants.

Pau. J. Banraret,

J StepHen R. Sworrorp,

Assistant Attorneys General,

160 North LaSalle Street, Suite 800,

Chicago, Illinois 60601 (312) 793-5635,

Of Counsel.

Printed by Authority of the State of Illinois

TABLE OF CONTENTS

PAGE

I a 1

ESL ee ae 1

STATUTE INVOLVED ... 2

QUESTIONS PRESENTED . abenestiiineiebesdsisdenies Z

STATEMENT OF THE CASE 3

SUMMARY OF ARGUMENT stesietasteenncnensntiieenendonts 8

ERE rt ie 13

I. The Principles of Younger v. Harris and Huff-

man v. Pursue, Lid. Require That This Suit Be

I settee ci i oe 13

II. The Procedures Provided For By The Illinois

Attachment Act Comport With Principles of

Rr I: GO i »> =

TIE saniiacsliniciaveniicctontiesSitsicidinaestclalit ia 34

TABLE OF AUTHORITIES

Cases Pace

Anonymous v. Association of the Bar of the City of

New York, 515 F.2d 427 (2d Cir. 1975), cert. denied,

423 U.S. 863, 46 L.Ed.2d 92, 96 S.Ct. 122 (1975) 0... 21

Apollo Metals, Inc. v. Standard Mirror Co., 87 IIL.

App.2d 383, 231 N.E.2d 655 (1967) 31

Atlantic Coast Line Railroad Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281, 26 L.Ed.2d 234,

90 S.Ct. 1739 (1970) ............... 18

Baird v. Liepelt, 62 Ill.App.2d 154, 210 N.E.24 1 (1965) 30

Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45,

85 L.Ed. 577, 61 S.Ct. 418 (1941) 14

Bell v. Burson, 402 U.S. 535, 29 L.Ed.2d 90, 91 S.Ct.

1586 (1971) . 27

Brandenburg v. Chicago Knitting Co., 102 Til. App. 302

(1902) ... 28

Cafeteria and Restaurant Workers Union v. McElroy,

367 U.S. 886, 6 L.Ed.2d 1230, 81 S.Ct. 1743 (1961) . 26, 34

Chase v. Bodge, 194 Ill-App. 352 (1915) 30

Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 72 L.Ed. 768,

48 S.Ct. 422 (1927) 34

Cousins v. Wigoda, 463 F.2d 603 (7th Cir. 1972), ap-

plication for a stay denied, 409 U.S. 1201, 34 L.Ed.2d

15, 92 S.Ct. 2610 (1972) 2.0.00... 19, 21

Douglas v. City of Jeannette, 319 U.S. 157, 87 L.Ed.

1336, GS BCA GET CRBGBD cciscesitnincnsitiienneee 14, 15, 16

Duke v. Texas, 477 F.2d 244 (5th Cir. 1973), cert. de-

nied, 415 U.S. 978, 39 L.Ed.2d 874, 94 S.Ct. 1565

(| ne Pal

Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594,

94 L.Ed. 1088, 70 S.Ct. 870 (1949) 27, 34

ili

Fahey v. Mallonee, 332 U.s. 245, 91 L.Ed. 2080, 67 S.Ct.

EE aT 34

Fenner v. Boykin, 2/1 US. 240, 70 L.Ed. 927, 46 S.Ct.

492 (1926) aati dalteneteeenenintanines 14, 15, 16

Fisher v. Federa! National Mortgage Ass’n, 360 F.

BU, TEE GR Fe I ccc cceececesssenecsscescscenioconennee 21

Fisher v. Secrist, 48 F. 264 (1891) —....- 28

Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct.

EE a ce 25, 29, 34

Huffman v. Pursue, Ltd., 420 US. 592, 43 L.Ed.2d 482,

an

nia 2, 7, 8, 9, 10, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24

Hutchinson v. Bank of North Carolina, 392 F.Supp. 888

I A i acnsernteeteerinatieritiblinsnaasen 29, 32

Inland Empire Council y. Millis, 325 U.S. 697, 89 L.Ed.

i Me caine nncsecteere ener 26

Jaycox v. Wing, 66 Ill. 182 (1872) —.........-..u.-...-..-. 31

Lawrence v. Hagerman, 56 Ill. 68 (1870) ................... 30

Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), cert.

denied, 415 U.S. 983, 39 L.Ed.2d 880, 94 S.Ct. 15976

SO nisiitlaaienitiinadinictnetinittemeitiennenreagastinaert ae 1H, 19, A, W

Massachusetts State Grange v. Benton, 272 U.S. 925,

71 L.Ed. 387, 47 SACt. 189 (1926) . 16

Mitchell v. W. T. Grant Co., 416 US. 600, 40 L.Ba.24

PF RF Re ee

ecteticttaicencatyiitaaiiitntans 8, 11, 20, 23, 25, 26, 27, 28, 30, 31, 32

NLRB v. Mackey Co., 304 U.S. 333, 82 L.Ed. 12981, 58

I ee 26

North Georgia Finishing, Ine v. Di-Chem, ine., 419

US. 601, 42 L.Bd.2d 751, % St, 719 (1975) -......... 32

Oklahoma Packing Co. v. Oklahoma Gas & Electric Co.,

309 U.S, 4, $4 L.Ed. 587, 60 S.Ct. 215 (1940) __........ 18

iv

Owmbey v. Morgan, 256 U.S. 94, 65 L.Ed. 837, 41 S.Ct.

I 34

Page v. Dillon, 61 Ill. App. 282 (1895) —...... 31

Palaio v. McAuliffe, 466 F.2d 1230 (5th Cir. 1972) ...... 21

Phillips v. Commissioner, 283 U.S. 589, 75 L.Ed. 1289,

Re re a Ae 34

Sniadach v. Family Finance Corp., 395 U.S. 337, B L.

Ed.2d 349, 89 S.Ct. 1820 (1969) 25, 28

Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 79 L.

BBG, EBRR, GB BCk. GO CID eiscrtcceerecitstrceittereeetntiees 14

Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.

es Ff) oes eS LAL ee a 26

Steffel v. Thompson, 415 U.S. 452, 39 L.Ed.2d 505, 94

ATR, GED CID menstiiteiieenestiene ica tetteeatead 19

Watson v. Buck, 313 U.S. 387, 85 L.Ed. 1416, 61 S.Ct.

| PRS Rig Tt Ol Ronse 14

Weber Chimney Co. v. Johnson, 205 Tl. App. 348 (1917) 31

Williams v. Miller, 317 U.S. 599, 87 L.Ed. 489, 63 S.Ct.

258 (1942) ........... femnesteqccosensiiniabitibaiiibaasl isdaih lial tlt teas 14

Younger v. Harris, 401 U.S. 37, 27 L.Ed. 2d 669, 91 S

Ct. 746 (1971) .... 2, 7, 8, 9, 10, 13, 14, 15, 17, 20, 21, 22, 23, 24

Statutes Anp REGULATIONS

I i i 2

I 19

TE TPR A TER SS <M Ee 1

NUN en Me Banh reed 2

I re en ES Fab 2,6

UN i ceil i 1

TTT AS eR 33

I I I 2

Til. Rev. Stat. 1973, ch. 23, § 11-21 00. 4, 13, 33

Supreme Court of the Anited States

Octoper Term, 1975

No. 75-1407

JAMES TRAINOR, et al.,

Appellants,

vs.

JUAN HERNANDEZ, et al,

Appellees.

On Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

BRIEF AND ARGUMENT OF APPELLANTS

JAMES TRAINOR AND VIVIAN O'MALLEY

OPINION BELOW

The opinion of the district court (A. 68-77) is reported

at 405 F. Supp. 757.

JURISDICTION

Appellees broucht this class action under 28 U.S.C. § 1343

(3) and (4) and 42 U.S.C. § 1983, seeking to have the dis-

trict court declare invalid and enjoin the enforcement of

ain

the Illinois Attachment Act, on the ground that the proce-

dures provided for by that Act deprived appellees of their

property without due process of law in violation of the

fourteenth amendment to the United States Constitution.

A three-judge court, convened pursuant to 28 U.S.C. §§ 2281

and 2284, entered its judgment on December 15, 1975, grant-

ing appellees the relief sought.

Appellants filed their notice of appeal in the district

court within the 60-day period provided for by 28 U.S.C.

§ 2101(b), on February 3, 1976 (A. 79), and filed their

jurisdictional statement on April 3, 1976. This Court noted

probable jurisdiction on June 7, 1976. Jurisdiction of the

Supreme Court of the United States to review this case by

direct appeal is conferred by 28 U.S.C. § 1253.

STATUTE INVOLVED

The Illinois Attachment Act, Illinois Revised Statutes,

Chapter 11 is reprinted in the Appendix (A. 28-49).

QUESTIONS PRESENTED

1. Whether the principles of Younger v. Harris, 401 U.S.

37 (1971), and Huffman v. Pursue, Ltd., 420 U.S. 592 (1975),

apply to the present case, where appellees sought to have

the federal district court enjoin appellants—state officials—

from prosecuting a pending attachment proceeding against

appellees in the Illinois courts.

2. Whether the procedures provided for by the Illinois

Attachment Act, Illinois Revised Statutes 1973, Chapter

11, afford appellees—attachment debtors—due process of

law.

ote.

STATEMENT OF THE CASE

Appellees Juan and Maria Hernandez brought this class

action in the district court challenging the constitutionality

of the Illinois Attachment Act (A. 28-49) after the State

of Illinois, on the relation of the Illinois Department of

Public Aid, instituted attachment proceedings against them

in the Illinois courts. The Department filed its state suit

to attach monies on deposit in appellees’ credit union ac-

counts on the ground that appellees applied for and re-

ceived public assistance while fraudulently concealing the

existence of those accounts.

The Illinois Attachment Act provides that a creditor

having a money claim may attach the property of his debtor

on any one of nine narrow grounds, all of which focus on

circumstances which give a creditor cause for insecurity,

either because of fraudulent conduct on the part of the

debtor or the debtor’s absence from the State (41) (A.

28-29). A creditor is entitled to a writ of attachment if he

files with the clerk of the court an affidav't setting forth

the nature and amount of the claim and one of the nine

circumstances set forth in section one (§2) (A. 29-30). In

cases sounding in tort the creditor is required to be exam-

ined under oath by a judge concerning the cause of action

(§2) (A. 29-30). Except where an agency of the State is

involved, the creditor is required to furnish a bond in

double the amount of the claim or double the amount of

the property to be attached (§§ 4a, 4b) (A. 31-32).

Upon filing of a proper affidavit and the posting of bond,

the clerk issues a writ of attachment directed to the sher-

=

iff, who executes the writ and also serves it upon the

debtor (§§ 6, 8, 10) (A. 33-36). The writ is returnable and

the debtor must appear or answer on a date set by the

creditor, which date shall not be less than ten nor more

than sixty days from the date of the writ (§4 6, 25) (A.

33, 43). The creditor must file his complaint ten days be-

fore the return day, and if he does not do so within five

days after the return date, the suit is subject to dismissal

($25) (A. 43). The debtor may at his option contest the

attachment by a motion to quash, answer the creditor’s

claim on the merits ($27) (A. 44), or file any other paper

appropriate to a civil proceeding (426) (A. 43), snch as

a motion to dismiss. The burden of proof of establishing

the propriety of the attachment and the underlying claim

is upon the creditor. If the attachment is found to be wrong:

ful, the debtor may recover damages and costs (§§ 4a, 27)

(A. 31, 44).

The debtor also has the right to retain or: recover pos-

session of the property in question by posting a bond in

double the value of the property or in the amount of the

debt (§§ 14, 15) (A. 38). In absence of this bond, the sheriff

retains custody of the attached property (4 14) (A. 38)

until the debtor successfully attacks the attachment or the

underlying claim is adjudicated. In the case of garnish-

ment, the garnishee must withhold the property from the

debtor (§ 21) (A. 41). |

The Illinois Department of Public Aid brought its at-

tachment suit.on October 30, 1974, pursuant to section 11-

21 of the Illinois Publie Aid Code (A. 26), which author-

izes the Department to bring a civil and/or criminal action

against any aid recipient who has concealed facts which

-

would affect his eligibility for financial aid. The Depart-

ment filed both the required affidavit and its complaint,

which alleged that appellees had fraudulently concealed the

existence of monies in their credit union accounts, and that

as a result, the Department had provided public assistance

in the amount of $3,720.00, for which they were not eligible

(A. 14-20).

The writ of attachment (A. 21-23) was thereupon issued

and executed against the accounts on November 5, 1974.

Appellees were served with the writ, complaint, and affi-

davit on November 8, 1974. They appeared on the return

date, which had been set for November 18, 1974, but were

informed that the matter had been continued until Decem-

ber 19, 1974 (A. 9-10).

Appellees then brought the present action in the district

court on December 2, 1974, on behalf of themselves and

all others “who have had or may have their property at-

tached without notice or hearing upon a creditor’s mere

allegation of fraudulent conduct pursuant to the [linois

Attachment Act” (A. 6-7), attacking the validity of the

Jilinois Act and asking fer injunctive relief. They asserted

that the [linois Act violates the due process clause in that

it authorizes creditors te attach the assets of debtors upon

allegations of fraudulent conduct ($i, parts sixth through

ninth (A. 28-29)) without judicial review and without prior

notice or an opportunity to be heard (A. 10-i1). Appellees

prayed that the Clerk of the Cireuit Court of Cook County,

as an individual defendant, and al! other clerks for the

judicial circuits cf Illinois, as class defendants, be enjoined

from issuing such writs; that the Sheriff of Cook County,

as an individual! defendant, and all other county sheriffs in

Tilinois, as class defendants, be enjoined from executing

oiinn

such writs ; and that appellants Trainor and O’Malley, as

agents of the Illinois Department of Publie Aid, be enjoined

from applying for such writs and from refusing to dismiss

the writ of attachment against the appellees’ property

(A, 12-13).

The appellees also moved for a temporary restraining

order requiring appellants to dismiss the writ of attach-

ment and requiring defendant Elrod, as sheriff, to release

control of their property (A. 24). In an affidavit in sup-

port of this request, appellee Juan Hernandez stated that

he needed the money in his credit union account to pay his

rent, utility bills, and an automobile repair bill, and to sup-

port his family while he went into the hospital for sur-

gery on his back (A. 24-25). Appellants filed a memoran-

dum in opposition to appellees’ motion for a temporary

restraining order, with supporting affidavits. The affidavits

revealed that appellee Juan Hernandez had hospitalization

benefits, including sick pay, provided by his employer (A.

50); that appellees had a combined income of more than

$15,000 in the first 11 months of 1974 (A. 51); and that

appellees had a combined balance of more than $1,600 in

their credit union accounts. In their memorandum, appel-

lants also stated that appellees had a total income of more

than $10,000 (R. Item 5, p. 12), during the period in which

they collected $4,123.76 in public aid benefits (A. 53). The

appellees’ request for temporary relief was not ruled on

because the court persuaded the parties to come to an

agreement whereby appellants agreed to release one-half

of the attached funds.

A three-judge court was designated pursuant to 28

U.S.C., $2284, on March 21, 1975 (A, 61). The parties filed

memoranda on the due process issue after appellants filed

ee

—

a@ motion to dismiss (A. 55-56) and appellees cross-filed

for summary judgment (A. 57). The district court then

directed that additional memoranda be filed in light of this

Court’s decision in Huffman v. Pursue, Ltd., 420 U.S. 592

(1975) (A. 62). The district court certified this suit as

both a plaintiff and defendant class action on October 31,

1975 (A. 63-64).

The district court entered its judgment and opinion on

December 15, 1975, granting appellees the relief they had

requested (A. 65-77). The court held that Huffman v. Pur-

sue, Ltd. was inapplicable, because that case was limited to

civil proceedings “in aid of and closely related to crim-

inal statutes” (A, 71-72). The court stated:

In Huffman, the State of Ohio proceeded under a stat-

ute which gave an exclusive right of action to the state.

By contrast, the Illinois Attachment Act provides a

cause of action for any person, public or private. It is

mere happenstance that the State of Illinois was the

petitioner in this attachment proceeding. It is likewise

coincidental that the pending state proceedings may

arguably be quasi-criminal in nature; under the Illinois

Attachment Act, they need not be. These major dis-

tinctions preclude this Court from extending the prin-

ciples of Younger, based on considerations of equity,

comity and federalism, beyond the quasi-criminal situ-

ation set forth in Huffman (A. 72).

The court also held that the case fell within one of the

express exceptions to Younger v. Harris, since in the court’s

view, the Illinois Attachment Act was “patently and flag-

rantly violative of the constitution” (A. 72).

The court found the Illinois Act (§§ 1, 2, 2a, 6, 8, 10 and

14) unconstitutional because, according to the court, it

neither provided for a pre-seizure hearing nor the alter-

ealllien

native safeguards approved by this Court in Mitchell vy.

W. T. Grant Co., 416 U.S. 600 (1974) (A. 76-77).

The appellants filed a motion for a stay of injunction

pending appeal, which the court denied on February 25,

1976, the Honorable Wilbur F. Pell, Jr., United States Cir-

cuit Court Judge, dissenting (A. 81).

SUMMARY OF ARGUMENT

The principles of Younger v. Harris and Huffman v.

Pursue, Ltd. are fully applicable to this case, where ap-

pellees brought suit in the federal district court to enjoin

a pending attachment proceeding which the Illinois Depart-

ment of Public Aid instituted against them in the Illinois

courts, The district court, thus, should have deferred to the

state court and dismissed this case.

The rule that a federal court should not intervene in

state criminal prosecutions, except in extraordinary cir-

cumstances, is traditional doctrine that this Court clarified

in Younger. Considerations of equity, comity, and federal-

ism underlie this rule.

Equity counsels that in any suit for injunctive relief

a plaintiff must establish that he has no adequate remedy

at law, and that absent equitable relief, he will suffer

irreparable harm. When a plaintiff seeks to enjoin state

court proceedings, the principles of comity and federalism,

enlinn

which command respect for state functions and which are

at the heart of our federal system, come into play. It has

traditionally been held in such circumstances that the plain-

tiff must then establish irreparable harm which is both

“great and immediate,” which the Younger case translated

into the extraordinary circumstances requirement. An in-

junction directed against a state court proceeding is very

costly to federal interests, and thus, is only issued in extra-

ordinary circumstances where the state court processes

are inadequate to protect the plaintiff. Only in such cir-

cumstances should the federal courts assert themselves as

the ultimate guarantor of federal rights.

There is no question that considerations of equity, comity,

and federalism are relevant, regardless of whether the

federal suit is to enjoin state criminal or civil proceedings.

Prior decisions of this Court, however, have only concerned

injunctions against state criminal prosecutions or against

proceedings where the State was seeking to enforce a stat-

ute with quasi-criminal elements. The district court inter-

preted this fact as a limitation on the rule of Younger and

Huffman, and thus, enjoined the state proceeding involved

in this case.

This supposed limitation of Younger and Huffman rests

on the notion that unless state criminal or quasi-criminal

interests are involved, the State’s interest is not substantial

enough to offend our federal system when federal rights

are asserted. The substantiality of the State’s interest, how-

ever, depends on the state policy involved, and not on the

labels “criminal” and “civil.” The State’s interest is sub-

stantial whenever the state courts are called upon to en-

force or interpret the State’s own substantive rules, and

federal court intervention in such circumstances will in

—) )—

every case be an affront to state legislative and judicial

functions. The district court’s injunction against a state

agency in this case was an embarrassment to executive

functions as well. Moreover, one of the state substantive

policies involved here—that of the prevention of welfare

fraud—is of the utmost importance and provides the quasi-

criminal element to which the district court attached such

significance.

The district court also found Younger and Huffman in-

applicable because in its view, the Illinois Attachment Act

is “patently and flagrantly violative of the constitution.”

The court, however, misapprehended the nature of this ex-

ception to the Younger rule. This case does not present an

extraordinary circumstance necessary to vitiate the Young-

er rule, This is evident from the fact that appellees could

have eliminated the supposed threat to their due process

rights by their defense of the state attachment case. The

district court applied a “facial invalidity” standard to the

Illinois Act, which is insufficient to invoke an exception to

the rule of Younger.

Appellees’ due process rights could have been vindicated

quickly and effectively in the state attachment proceeding

which gave rise to this case, without embarrassment to

the federal system. The district court clearly misapprehend-

ed its role as the guarantor of federal rights, and for these

reasons, its judgment should be vacated.

-—

In Mitchell v. W. T. Grant Co. this Court set out the due

process standards to be applied to statutes providing for

the seizure of a debtor’s property. Due process requires

only that the State strike « proper balance between credi-

tor and debtor interests. The creditor’s interest in pre-

serving property subject to attachment against possible

waste or destruction, and the risk of wrongful alienation

or concealment if a debtor is forewarned of the attachment

are sufficient to justify summary attachments on a credi-

tor’s own sworn ex parte application, provided there are

procedural safeguards which minimize risk against wrong-

ful seizure.

The safeguards against wrongful attachment provided

for by the Illinois Attachment Act parallel those sustained

in Mitchell in all essential respects. Before a writ of attach-

ment will issue under the Illinois Act, a creditor must file

an affidavit setting forth the nature of his claim and its

amount, diminished by set-offs and credits, and one of

nine narrow circumstances in which an attachment will

issue. The facts which give rise to his claim must be set

forth specifically under Illinois decisional law, and must

be of the affiant’s own personal knowledge. If his claim

sounds in tort, rather than contract, the creditor must ap-

pear before a judge to be examined on his claim, The nine

circumstances under which attachment will issue under the

Act are narrowly drawn, so that attachment is available

only when the creditor will have especially grave concern

for his ability to collect on his claim, absent attachment. In

this respect the Illinois Act is considerably narrower than

the statute in Mitchell. The creditor is required to post bond

and is liable to the debtor for wrongful attachment, The

—12—

debtor’s interest is further safeguarded by the fact that

the sheriff retains possession of the attached property,

whereas in Mitchell the creditor was entitled to possession.

A debtor may recover his property by posting bond. Final-

ly, the debtor is entitled to an early hearing within sixty

days, and may well be able to advance the date of his hear-

ing by proper motion. Thus, under the Illinois Act, the

danger of wrongful attachment and the seriousness of the

deprivation of the debtor’s property have been substantial-

ly minimized, and the attachment is allowed only when

the risks to a creditor’s security are especially serious.

Moreover, there are additional reasons to uphold the ap-

plication of the Illinois Act to the facts of this case. The

prevention of welfare fraud is an important governmental

interest, which apart from the other more general consid-

erations outlined above, justifies the summary attachment

of the property of the person who has committed the fraud.

——

~

THE PRINCIPLES OF YOUNGER v. HARRIS AND HUFF-

MAN v. PURSUE, LTD. REQUIRE THAT THIS SUIT BE

DISMISSED.

The same considerations which governed this Court’s

disposition of Younger v. Harris, 401 U.S. 37, 27 L.Ed.2d

669, 91 S.Ct. 746 (1971), and Huffman v. Pursue, Ltd., 420

U.S. 592, 48 L.Ed.2d 482, 95 S.Ct. 1200 (1975), are fully

applicable here, and dictate that the district court should

have dismissed the instant case. Instead of deferring to the

Illinois courts which are surely competent to rule on the

due process issue presented by the pending state attach-

ment proceeding which gave rise to this case, the district

court went to the merits of appellees’ constitutional chal-

lenge, striking down the Illinois Attachment Act and en-

joining appellants—state officials—from proceeding under

that Act.

In Younger this Court held that absent certain extra-

ordinary circumstances, considerations of equity, comity,

and federalism preclude the federal courts from enjoining

pending state criminal prosecutions. In Huffman the Court

made it clear that this doctrine applies in the civil arena

as well, at least where the “State is a party to the [pend-

ing] proceeding, and the proceeding is both in aid of and

closely related to criminal statutes.” 420 U.S. at 604, 43

L.Ed.2d at 492. Notwithstanding the facts that the State

was the plaintiff in the pending attachment suit involved

here and that the State was proceeding in aid of a statute

which gave it the option of pursuing criminal and/or civil

remedies in cases of welfare fraud, Ill. Rev. Stat. 1973, ch.

oiltins

23, §11-21, the district court held Huffman inapplicable. The

basis of the court’s holding was that the Illinois Attach-

ment Act provides a civil action available to anyone—

public or private—while the statute in Huffman “gave an

exclusive right of action to the State” and was itself quasi-

criminal in nature. The court found it “mere happenstance

that the State of Illinois was the petitioner in the attach-

ment proceeding,” and “coincidental that the pending state

proceeding may arguably be quasi-criminal in nature.” (A.

71-72).

It is the State’s position that the principles enunciated in

Younger and Huffman are applicable to pending state civil

proceedings generally, and to the present case particularly.

An examination of the considerations which mandated this

Court’s holdings in Younger and Huffman demonstrates

that the rule against federal intervention invoked in those

cases is applicable to all cases where a federal court is called

upon to enjoin state court proceedings, and clearly shows

the inappropriateness of the district court’s action in this

case.

As this Court pointed cut in Huffman, 420 U.S. at 599-

600, 43 L. Ed. 2d at 489-90, the decision in Younger was not

a novel one, but was a reaffirmation of the Court’s holdings

in a long line of cases typified by Fenner v. Boykin, 271 U.S.

240, 70 L. Ed. 2d 927, 46 S. Ct. 492 (1926).1 Relying on

these cases, the Court in Younger stated:

1 These cases, as identified by the Court in Huffman, 420 US. at

600, 43 L.Ed.2d at 490, are: Spielman Motor Sales Co. v. Dodge,

295 U.S. 89, 79 L.Ed. 1322, 55 S.Ct. 678 (1935); Beal v. Missourt

Pacific R.R. Co., 312 U.S. 45, 85 L.Ed. 577, 61 S.Ct. 418 (1941) ;

Watson v. Buck, 313 U.S. 387, 85 L.Ed 1416, 61 S.Ct. 962, 136

ALR. 1426 (1941); Williams v. Miller, 317 U.S. 599, 87 L.Ed

489, 63 S.Ct. 258 (1942); Douglas v. City of Jeannette, 319 US.

157, 87 L.Ed. 1324, 63 S.Ct. 877 (1943).

= =

This brief discussion should be enough to suggest

some of the reasons why it has been perfectly natural

for our cases to repeat time and time again that the

normal thing to do when federal courts are asked to

enjoin pending proceedings in state courts is not to

issue such injunctions.

401 U.S. at 45, 27 L. Ed. 2d at 676. Federal interference is

justified only “under extraordinary circumstances where

the danger of irreparable loss is both great and immedi-

ate”. Huffman, 420 U.S. at 600, 43 L. Ed. 2d at 490, citing

Fenner v. Boykin, 271 U.S. at 243, 70 L. Ed. at 927;

Younger, 401 U.S. at 45, 27 L. Ed. at 676.

The most basic source of this rule lies in the require-

ments for pleading any cause of action in equity. Douglas

v. City of Jeannette, 319 U.S. 157, 162, 87 L. Ed. 1324,

1328, 63 S. Ct. 877 (1943). The plaintiff must establish

that he has no adequate remedy at law, Huffman, 420 U.S.

at 600-01, 43 L. Ed. 2d at 490, citing Younger, 401 U.S. at

43, 27 L. Ed. 2d at 675, and that he will suffer irreparable

harm in the absence of equitable relief, Huffman, 420 U.S.

at 601, 43 L. Ed. 2d at 490-91, citing Younger, 401 U.S. at

46, 27 L. Ed. 2d at 676. The especially stringent require-

ment that equitable relief will still not be available except in

extraordinary circumstaices arises in the context of a suit

to enjoin state court proceedings. This requirement of ex-

traordinary circumstances is directly traceable to and is

dictated by the principles of comity and federalism. Young-

er, 401 U.S. at 46, 27 L. Ed. 2d at 676; Lynch v. Snepp,

472 F. 2d 769, 772 (4th Cir. 1973), cert. denied, 415 U.S.

983, 39 L. Ed. 2d 880, 94 S. Ct. 1576 (1974); see Douglas

v. City of Jeannette, 319 U.S. at 162-63, 87 L. Ed. 2d at

1329; Fenner v. Boykin, 271 U.S. at 243-44, 70 L. Ed. at 927.

While some of the cases cited above also found support

in the maxim that courts of equity do not ordinarily en-

<fiin

join criminal prosecutions, e.g., Douglas v. City of Jean-

nette, 319 U.S. at 163, 87 L. Ed. at 1329, it is clear that

this maxim was not necessary to the reasoning or the

holdings of those cases. The requirement of irreparable

harm arises in any suit for an injunction, and the re-

quirement of extraordinary circumstances arises out of a

regard for state functions. This was clearly recognized in

Huffman, where this Court stated:

The seriousness of federal judicial interference with

state civil functions has long been recognized by this

Court. We have consistently required that when fed-

eral courts are confronted with requests for such re-

lief, they should abide by standards of restraint that

go well beyond those of private equity jurisprudence.

For example, Massachusetts State Grange v. Benton,

272 U.S. 525, 71 L. Ed. 387, 47 S. Ct. 189 (1926),

involved an effort to enjoin the operation of a state

daylight savings act. Writing for the Court, Mr. Jus-

tice Holmes cited Fenner v. Boykin, supra, and empha-

sized a rule that “should be very strictly observed,”

272 U.S., at 529, 71 L. Ed. 387, “that no injunction

ought to issue against officers of a State clothed with

authority to enforce the law in question, unless in a

case reasonably free from doubt and when necessary

to prevent great and irreparable injury.” Jd., at 527,

71 L. Ed. 387.

420 U.S. at 603, 43 L. Ed. 2d at 492.

The great degree of deference to state functions which

the above cases require is fundamental to our federal form

of government. The notions of federalism and comity? which

2 While it is recognized that ‘‘comity’’ and ‘‘federalism’’ may

be defined separately, the concepts overlap to such an extent that

any attempt to do so comprehensively is unnecessary here. It

would seem that comity is 4 more general concept since it en-

(footnote continued on following page)

= Ss

this Court termed as the most vital to its decisions in

Younger and Huffman are

a recognition of the fact that the entire country is

made up of a Union of separate state governments, and

a continuance of the belief that the National Govern-

ment will fare best if the States and their institutions

are left free to perform their separate functions in

their separate ways. This, perhaps for lack of a bet-

ter and clearer way to describe it, is referred to by

many as “Our Federalism,” and one familiar with the

profound debates that ushered our Federal Constitu-

tion into existence is bound to respect those who re-

main loyal to the ideals and dreams of “Our Fed-

eralism.” The concept does not mean blind deference

to “States’ Rights” any more than it means centraliza-

tion of control over every important issue in our Na-

tional Government and its courts. The Framers re-

jected both these courses. What the concept does rep-

resent is a system in which there is sensitivity to the

legitimate interests of both State and National Gov-

ernments, and in which the National Government, anx-

ious though it may be to vindicate and protect federal

rights and federal interests, always endeavors to do

so in ways that will not unduly interfere with the legiti-

mate activities of the States. It should never be for-

gotten that this slogan, “Our Federalism,” born in the

early struggling days of our Union of States, occupies

a highly important place in our Nation’s history and

its future.

Younger, 401 U.S. at 44, 27 L. Ed. 2d at 675; accord, Huff-

man, 420 U.S. at 601, 43 L. Ed. 2d at 490.

the deference or respect which any jurisdiction accords

to the law of another. Federalism would seem to be the institu-

tionalization of comity into our government via the Constitution.

It additionally connotes the function of our federal government

as the ultimate guarantor of federal rights.

—18—

In Atlantic Coast Line Railroad Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281, 26 L. Ed. 2d 234, 90

S. Ct. 1739 (1970), this Court outlined the constitutional

and Congressional foundation for federal deference to state

court proceedings, as follows:

When this Nation was established by the Constitu-

tion, each State surrendered only a part of its sovereign

power to the national government. But those powers

that were not surrendered were retained by the States

and unless a State was restrained by “the supreme

Law of the Land” as expressed in the Constitution,

laws, or treaties of the United States, it was free to

exercise those retained powers as it saw fit. One of the

reserved powers was the maintenance of state judicial

systems for the decision of legal controversies. .. .

While the lower federal courts were given certain

powers in the [Judiciary Act of 1789], they were not

given any power to review directly cases from state

courts, and they have not been given such powers

since that time. Onlv the Supreme Court was author-

ized to review on direct appeal the decisions of state

courts. Thus from the beginning we have had in this

country two essentially separate legal systems. Each

system proceeds independently of the other with ulti-

mate review in this Court of the federal questions

raised in either system. Understandably this dual court

system was bound to lead to conflicts and frictions.

Litigants who foresaw the possibility of more favorable

treatment in one or the other system would predictably

hasten to invoke the powers of whichever court it was

believed would present the best chance of success. Ob-

viously this dual system could not function if state

and federal courts were free to fight each other for

control of a particular case. Thus, in order to make

the dual system work and “to prevent needless fric-

tion between state and federal courts,” Oklahoma Pack-

ing Co. v. Gas Co., 309 U.S. 4, 9, 84 L. Ed. 537, 540,

—19—

60 S. Ct. 215 (1940), it was necessary to work out

lines of demarcation between the two systems. Some

of these limits were spelled out in the 1789 Act. Others

have been added by later statutes as well as judicial

decisions.

398 U.S. at 285-86, 26 L. Ed. 2d at 240-41.

The Court went on to state:

Proceedings in state courts should normally be al-

lowed to continue unimpaired by intervention of the

lower federal courts, with relief from error, if any,

through the state appellate courts and ultimately this

Court.

398 U.S. at 287, 26 L. Ed. 2d at 241. See 28 U.S.C. $1257.

The specific ways in which federal intervention in state

court proceedings violates principles of comity and fed-

eralism have been identified many times. Such interven-

tion results in duplicative legal proceedings, which runs

directly contrary to the present day need for judicial ef-

ficiency. Steffel v. Thompson, 415 U.S. 452, 462, 39 L.Ed.

2d 505, 516, 94 S.Ct. 1209 (1974); Lynch v. Snepp, 472 F.

2d at 774. It reflects negatively on the state court’s ability

and good faith in enforcing constitutional rights. Huff-

man, 420 U.S. at 604, 43 L.Ed.2d at 492; Lynch v. Snepp,

472 F.2d at 774. In this regard, the Huffman Court ex-

pressly refused to assume that state courts would fail to

execute their constitutional responsibilities. 420 U.S. at

611, 43 L.Ed.2d at 496; accord, Cousins v. Wigoda, 463 F.

2d 603 at 607, 608 (7th Cir. 1972), application for a stay

denied, 409 U.S. 1201, 34 L.Ed.2d 15, 92 S.Ct. 2610 (1972).

Most importantly, federal intervention prevents the State

from effectuating its substantive policies and continuing

to perform the separate function of providing a forum

competent to vindicate any constitutional objections to those

—_ |

policies. Huffman, 420 U.S. at 604, 43 L.Ed.2d at 492. The

cutting short of the state proceeding is especially serious

in this context where the statute involved is capable of

judicial narrowing in light of constitutional principles, as

is the statute involved in this case. Huffman, 420 U.S. at

609, 43 L.Ed.2d at 495.

It should be apparent that the above considerations are

fully applicable to this case. Appellees had the opportunity

in the state court to assert the same constitutional objec-

tions which they presented to the federal district court, by

filine a motion to quash or 2 motion to dismiss, which would

have come on for hearing no later than December 19, 1974—

nearly a full year before the decision in this case. Such

a course would have avoided dual proceedings and would

most certainly have saved the court as well as the parties

a great deal of time. This is especially so in view of the

fact that a three-judge court had to be convened. The State

would also have been given the opportunity to rule on its

own substantive policies in light of this Court’s recent due

process decisions dealing with summary seizures of prop-

erty. Notwithstanding the fact that the district court held

the Illinois Act to be “patently and flagrantly violative of

the constitution,” there is ample room for judicial con-

struction within the Act to bring it within this Court’s

holding in Mitchell v. W. T. Grant Co., 416 U.S. 600, 40

L.Ed.2d 406, 94 S.Ct. 1895 (1974).

The district court found the principles of Younger and

Huffman to be inapplicable in the present case, since in

that court’s view, the rule of those cases was limited to

criminal proceedings or proceedings “in aid of and closely

related to eriminal statutes.” This supposed bar to the

applicability of Younger and Huffman to civil proceed-

ings apparently rests on the State’s paramount interest in

—21—

defining crimes, and the additional protections afforded

defendants in a criminal prosecution. Huffman, 420 U.S.

at 614, 615, 43 L.Ed.2d at 498, 499, dissenting opinion.

According to this view, the federal court’s role as the ulti-

mate guarantor of federal rights is outweighed by prin-

ciples of equity, comity, and federalism only when the

State’s interest in the proceeding is especially important

and the defendant has procedural guarantees beyond those

which attach to civil proceedings. The latter reason has

been wholly undercut by Huffman where only civil pro-

cedural guarantees were involved. Furthermore, while civil

proceedings offer fewer procedural guarantees, the federal

interest in such proceedings is correspondingly diminished

by the fact that the potential impact on federal rights is

lessened where criminal sanctions are not involved. As to

the supposition that the State’s interest is paramount or

substantial only when criminal prosecutions are involved,

it is more likely the case that the substantiality of the

State’s interest depends on the specific policy involved

rather than on the labels “criminal” or “civil”. Anonymous

v. Association of the Bar of the City of New York, 515 F.

2d 427, 432 (2d Cir. 1975), cert. denied 423 U.S. 863, 46 L.

Ed.2d 92, 96 S.Ct. 122 (1975); Lynch v. Snepp, 472 F.2d at

773; Duke v. Texas, 477 F.2d 244, 248 (5th Cir. 1973), cert.

denied, 415 U.S. 978, 39 L. Ed. 2d 874, 94 S.Ct. 1565 (1974) ;

Cousins v. Wigoda, 463 F.2d at 606; Palaio v. McAuliffe,

466 F.2d 1230, 1232-33 (5th Cir. 1972); Fisher v. Federal

National Mortgage Ass’n, 360° F.Supp. 207, 210 (D. Md.

1973). It would surely seem that any policy which the State

feels is important enough to codify is sufficient to invoke

the principles of comity and federalism. But even assum-

ing that principles of Younger and Huffman are not ap-

plicable to civil proceedings generally, they should certain-

—. =

ly be applied in the present case where the State was a

party to the proceeding and the strong state policy of

combatting welfare fraud was involved.

The district court was able to avoid the Huffman doc-

trine only by focusing in on its supposed limited applicabil-

ity to civil cases which are quasi-criminal, and then ap-

plying the supposed limitation to a case which might have

been brought under the Illinois Act. Because of the nature

of the considerations which gave rise to Younger and Huff-

man, however, it would seem that the limitation of Huff-

man, if valid at all, should be applied only to the specific

proceeding before the court. In other words, the principles

of Younger and Huffman apply to the instant case because

the State is a party and the state eivil proceeding involved

is in aid of a criminal statute. Considerations of equity,

comity, and federalism are no less applicable to the present

case merely because a private party could have brought a

strictly civil action under the Illinois Act.

The extraordinary circumstances in which Younger and

Huffman do not apply (and which help preserve the fed-

eral court’s function as the ultimate guarantor of federally

secured rights) are not present in this case. There is ab-

solutely no indication of bad faith or harassment in this

suit. Nor is there any indication of irreparable injury,

much less irreparable injury which is “great and immedi-

ate.” The appellees had an income of approximately $15,000

in the ten months preceding the attachment of the funds

in their credit union account (A. 51). They also had ade-

quate and speedy remedies available to them in the state

court to defeat the attachment. The district court made

no finding of irreparable injury, and in view of the above

circumstances, for this reason alone the district court

should have dismissed this case. |

i.

The district court did hold that the Illinois Act was

“patently and flagrantly violative of the constitution.”

It is apparent, however, the court misconstrued the nature

of this exception to Huffman. The extraordinary cireum-

stances in which considerations of equity, comity, and fed-

eralism yield to the federal court’s interest in guaranteeing

federal rights rest on a determination that the state court

processes are wholly inadequate to protect a party’s fed-

eral right, or that the very bringing of the state suit re-

sults in the necessary injury. Younger, 401 U.S. at 56, 27

L..Ed.2d at 682, concurring opinion; Lynch v. Snepp, 472 F.

2d at 775. Where the threat to federally protected rights can

be erased by the defense of a single prosecution, the in--

jury asserted by a plaintiff is not irreparable. Younger,

401 U.S. at 46, 27 L.Ed.2d at 677. Furthermore, it is clear

from the district court’s opinion that the district court

applied an unconstitutional “on its face” standard, which

is insufficient to overcome the rule of Younger and Huff-

man. Younger, 401 U.S. at 53, 27 L.Ed.2d at 681. The prop-

er standard is “flagrantly and patently violative of ex-

press constitutional prohibitions in every clause, sentence

and paragraph, and in whatever manner and against whom-

ever an effort might be made to apply it.” Huffman, 420

U.S. at 611, 48 L.Ed.2d at 496. Assuming arguendo, that

the application of the Illinois Act here violates appellees’

due process rights, it is not difficult to imagine situations

and constructions of the Illinois Act which would pass

3 In light of Argument II, infra, which demonstrates the close

similarities between the Illinois Act and the sequestration statute

which this Court upheld in Mitchell v. W. T. Grant Co., 416 US.

600 (1974), it is impossible to see how the district court reached

be conclusion that the Act was patently and flagrantly uncon-

tutional.

—24—

constitutional muster, especially where the underlying debt

sounds in tort and a pre-attachment appearance before a

judge is, therefore, required. Moreover, the Act applies to

actions already commenced, where the debtor is before the

court and has had an opportunity to answer the crecitor’s

complaint. In such circumstances, appellees’ due process ob-

jections would be totally inapplicable.

There is very little to support the district court’s in-

junction in this case. Appellees’ due process rights could

have been vindicated more expeditiously and as effectively

in the state court, with no embarrassment to the federal

system. It is at least questionable whether appellees even

stated an equitable cause of action, must less one so com-

pelling that it was necessary to interfere with state court

proceedings. And without in any way minimizing the im-

portance of federal due process rights, it should be noted

that these rights rarely call into play the strict scrutiny

of the federal courts, as is the case with first amendment

rights, for instance. The district court went far beyond its

function as an ultimate guarantor of federel rights, and

should have dismissed this suit.

II.

THE PROCEDURES PROVIDED FOR BY THE ILLINOIS

ATTACHMENT ACT COMPORT WITH PRINCIPLES OF DUE

PROCESS OF LAW.

Assuming arguendo, that the Court finds that the prin-

ciples of Younger and Huffman should not be applied in

this case, the district court’s judgment should be reversed

because the provisions of the Illinois Attachment Act af-

ford appellees due process of law. The procedures in ques-

tion here closely parallel! those upheld by this Court in

—5—

Mitchell v. W. T. Grant Co., 416 U.S. 600, 40 L.Ed.2d 406,

94 S.Ct. 1895 (1974). The district court’s decision, how-

ever, effectively restricted the holding of Mitchell to the

facts of that case. The court characterized Mitchell as “an

exception to the pre-seizure hearing rule promulgated in

Sniadach and Fuentes” (A. 73), rather than regarding it

as setting forth the proper approach to be followed in

resolving due process issues. Specifically, the district court

did not apply the traditional due process balancing of in-

terests test to the facts of this case, as is required by the

Mitchell decision.

In Mitchell this Court upheld a Louisiana statute which

provides for sequestration of property where “one claims

the ownership or right to possession of property... if it

is within the power of the defendant to conceal, dispose of,

or waste the property or the revenues therefrom, or remove

the property from the parish, during the pendency of the

action.” Under the statute a writ of sequestration issues

“only when the nature of the claim and the amount thereof,

if any, and the grounds relied upon for the issuance of the

writ clearly appear from specific facts.” The creditor is re-

quired to make this showing before a judge. He may do so,

however, on ex parte application, without notice to the

debtor or an opportunity for the debtor to be heard. The

debtor is entitled to seek immediate dissolution of the writ,

which must be ordered, unless the creditor “proves the

grounds upon which the writ was issued.” 416 U.S. at 605-

06, 40 L.Ed.2d at 412-13.

The creditor in Mitchell filed suit alleging default in pay-

ment on an installment sales contract and requested that the

property over which it had a vendor’s lien be sequestered.

The creditor asserted that it had reason to believe that the

debtor would “encumber, alienate or otherwise dispose of

=

the merchandise described in the foregoing petition during

the pendency of these proceedings, and that a writ of se-

questration is necessary in the premises.” Based on the

cre litor’s petition and affidavit, a Louisiana state court or-

dered, without prior notice or an opportunity for the debtor

to be heard, that the property be sequestered. The property

was seized on February 7, 1972, and on March 3rd, the

debtor attacked the sequestration as violative of his due

process rights. The court upheld the sequestration on March

16th, which decision was affirmed by the Supreme Court

of Louisiana. 416 U.S. at 601-03, 40 L.Ed.2d at 410-11.

In upholding the Louisiana statute, this Court weighed

all of the competing interests involved, making it clear that

the State is entitled to recognize the interests of both the

creditor and the debtor and to afford the creditor mean-

ingful protection. 416 U.S. at 608, 40 L_Ed.2d at 414. In

marked contrast to the approach followed by the district

court in the present case, this Court in Mitchell specifically

disavowed any notion of fixed requirements of procedural

due process:

The requirements of due process of law “are not

technical, nor is any particular form of procedure

necessary.” Inland Empire Council v. Millis, 325 U.S.

697, 710, 89 L. Ed. 1877, 65 S. Ct. 1316 (1945). Due

process of law guarantees “no particular form of pro-

cedure; it protects substantial rights.” NURB v. Mac-

kay Co., 304 U.S. 333, 351, 82 L. Ed. 1381, 58 S. Ct.

904 (1938). “The very nature of due process negates

any concept of inflexible procedures universally appli-

cable to every imaginable situation.” Cafeteria Work-

ers v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230,

81 S. Ct. 1743 (1961); Stanley v. Illinois, 405 U.S. 645,

650, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). Con-

sidering the Louisiana procedure as a whole, we are

convinced that the State has reached a constitutional

—27—

accommodation of the respective interests of buyer and

seller.

416 U.S. at 610, 40 L.Ed.2d at 415.

In Mitchell the Court found that the possible deteriora-

tion or destruction of the property in question, along with

the very real risk of concealment or alienation of the prop-

erty if the debtor is forewarned of the sequestration, to be

significant interests of the creditor. These interests, the

Court held, outweighed the impact on the debtor of the

deprivation of his property, in view of the low risk of a

wrongful sequestration under the procedures of the Louisi-

ana statute. 416 U.S. at 610, 40 L.Ed.2d at 415. Reempha-

sizing the fact that a creditor need only establish the like-

lihood of suecess on the merits before seizure of the debtor’s

property, the Court identified the procedures which it found

were in accord with principles of due process of law:

[I]t seems apparent that the seller with his own in-

terest in the disputed merchandise would need to es-

tablish in any event only the probability that his case

will succeed to warrant the bonded sequestration of the

property pending outcome of the suit. Cf. Beli v. Bur-

son, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971) ;

Ewing v. Mytinger & Casselberry, 339 U.S. 594, 94

L. Ed. 1088, 70 S. Ct. 870 (1950). The issue at this

stage of the proceeding concerns possession pending

trial and turns on the existence of the debt, the lien,

and the delinquency. These are ordinarily uncompli-

cated matters that lend themselves to documentary

proof; and we think it comports with due process to

permit the initial seizure on sworn ex parte docu-

ments, followed by the early opportunity to put the

creditor to his proof. The nature of the issues at stake

minimizes the risk that the writ will be wrongfully

issued by a judge. The potential damages award avail-

able, if there is a successful motion to dissolve the

-

writ, as well as the creditor’s own interest in avoiding

interrupting the transaction, also contributes to mini-

mizing this risk.

416 U.S. at 609-10, 40 L.Ed.2d at 414-15.

In balancing the interests, risks, and statutory safeguards

under the Illinois Attachment Act, it seems clear that the

scale tips toward the validity of the Act. The creditor must

establish the existence of the debt, as well as the need for

prompt action, by filing an affidavit setting forth both the

nature and amount of his claim, allowing for credits and

set-offs, and one of nine narrow and specific circumstances

in which an attachment may be had (§§1, 2) (A. 28-29).

The affidavit must allege facts unequivocally, and not mere-

ly on information and belief. Brandenburg v. Chicago Knit-

ting Co., 102 Ill, App. 302 (1902). The specificity neces-

sary for the affidavit to be valid is indicated in the case

of Fisher v. Secrist, 48 F. 264 (1891). In that case the

creditor stated in his affidavit that the debtor owed him

$24,000 upon covenants in a deed attached to the affidavit.

The court held the affidavit insufficient because it failed to

recite the facets relied upon as breaches of the covenants,

and the damages sustained by each breach.

In the present case appellants specifically set forth the

State’s claim against the appellees, the amount of that

claim, and the grounds for attachment in their attach-

ment complaint, which wes incorporated into the affidavit

by reference (A. 14-20). The facts alleged in that com-

plaint are clearly as specific as were the facts alleged by

the creditor in Mitchell, 416 U.S. at 602, 40 L.Ed.2d at 410.

The Illinois Act is narrowly drawn, allowing attachment

only in special “situation[s] requiring special protection to

... ereditor interests,” Sniadach v. Family Finance Corp.,

= S

395 U.S. 337, 339, 23 L.Ed.2d 349, 352, 89 S.Ct. 1820 (1969),

and where prompt and summary action is required. Fuentes

v. Shevin, 407 U.S. 67, 93, 32 L.Ed.2d 556, 577, 93 S.Ct. 1983

(1972) ; Hutchinson v. Bank of North Carolina, 392 F.Supp.

888, 895 (M.D. N.C. 1975). Under the Illinois Act, attach-

ment may be had only in nine narrow circumstances ($1)

(A. 28-29), all of which give the creditor grave concern for

his ability to collect from the debtor, absent summary pro-

cedures. The first five grounds for attachment, which the

district court’s opinion does not directly reach,* concern

situations where the debtor is absent from the State, can-

not be served with process, or is about to remove himself

and/or his property from the State. The other four grounds,

with which the district court specifically dealt, concern

situations where the debtor has or is about to fraudulently

conceal or dispose of his property or has fraudulently con-

tracted for the debt sued upon so as to hinder or delay his

creditors. In such cases there can be little doubt that sum-

mary action is necessary. If the debtor were to be fore-

warned of the creditor’s suit, the creditor’s claim would

quite likely become worthless.

In actions sounding in tort under the Illinois Act, the

creditor must be examined by a judge concerning his cause

of action before a writ of attachment may issue (§2) (A.

4 The court’s injunction refers only to attachment proceedings

under section one, parts sixth through ninth. The court, however,

declared §§1, 2, 2a, 6, 8, 10, and 14 of the Act unconstitutiona ,

thus foreclosing attachments on any of the grounds set forth in

section one.

=

29-30).5 In contract actions, the matters involved are ordi-

narily substantiated by documentary proof and a sworn

affilavit should thus be sufficient. Mitchell, 416 U.S. at 609,

40 L.Ed.2d at 415. In such cases an ex parte appearance

before a judge would be a mere formality.

The debtor is also protected against all loss by the cred-

itor’s bond, except where a state agency is the creditor,

as here (§§4a, 4b) (A. 31-32), and may recover damages

and costs for wrongful attachment (§4a, 27) (A. 31-32,

44), which include attorney’s fees. Chase v. Bodge, 194 Il.

App. 352 (1915). The debtor may also bring a tort action

against the creditor for bringing the attachment without

probable cause. In such cases the damages recoverable in-

clude all losses incurred as a result of the attachment, Law-

rence Vv. Hagerman, 56 Il). 68 (1870), Baird v. Liepelt,

62 Ill. App. 2d 154, 210 N.E.2d 1 (1965), and in cases of

malice, exemplary damages. Lawrence v. Hagerman, 56 Tl.

68 (1870).

The debtor may recover possession of the property by

filing a bond ($§14, 15) (A. 38). Destruction of the attached

property is precluded because the sheriff retains custody

of it ($14) (A. 38). This latter protection afforded a debtor

was absent in Mitchell where the creditor took possession

of the seized property. Thus, the deprivation of property

in this case is far less serious, since destruction and waste

5 The attachment action as filed in the state court in this case

proceeded upon a contract theory (A. 18). Since the underlying

claim is fraud, however, it seems apparent that appellee could have

attempted an attack on the writ of attachment as being illegally

issued, in that the claim sounds in tort, and thus, it was neces-

sary for State to apply to a judge for the writ. Whether the State

should have so proceeded in this case is a question peculiarly for

state court to answer.

-

by the creditor are foreclosed. Possession by the sheriff

ensures Official supervision of the attachment proceeding,

and thereby prevents the abuse of the attachment remedy.

Under the Illinois Act, the debtor is also given an early

hearing within 60 days of the attachment, at which he may

attack the attachment alone, or defend on the merits of the

underlying claim (4$§6, 25) (A. 33-34, 43).6 Given the re-

quirements of modern litigation, a hearing within 60 days

must be considered timely. Furthermore, the debtor may

well be able to advance the hearing date by filing a mo-

tion to quash or dismiss. Such advancements are discre-

tionary with the court and should be granted for good

and sufficient cause. Page v. Dillon, 61 Ill. App. 282 (1895).

At any hearing on any of the issues involved, the burden

is upon the creditor to prove strictly every fact that forms

the basis of his attachment. Apollo Metals, Inc. v. Stand-

ard Mirror Co., 87 Ill. App. 2d 383, 389, 231 N.E.2d 655,

659 (1967); Jaycox v. Wing, 66 Ill. 182 (1872). There are

no presumptions in favor of an attachment plaintiff. Weber

Chimney Co. v. Johnson, 205 Ill. App. 348 (1917).

While a creditor’s lien is not involved in this case, as

was in Mitchell, the Illinois Act is, as noted above, much

more narrowly drawn, encompassing only nine circum-

stances, all of which give a creditor grave concern for his

6 Appellees surveyed the attachment cases filed in Cook County,

Illinois in 1974. Of the 97 cases initiated, they located 78 case files.

The average period of time in these cases between the date on

which the writ of attachment was served and the return date was

18.2 days, the longest period being 59 days. In the 13 cases in

which the debtors appeared on the return day, the average period

of time between the date the writ was served and the trial date

was 39 days, the longest period being 70 days. In the present case,

the period between service of the writ and the scheduled trial date

was 42 days (A. 9-10).

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ability to collect from the debtor. These nine circum-

stances are far more threatening than those that were

involved in Mitchell, where the creditor had only to show

that it was within the power of the debtor to conceal or

waste the property in issue. Moreover, it cannot be said

that a creditor’s lien is at all necessary to the result in

Mitchell. In North Georgia Finishing, Inc. v. Di-Chem

Inc., 419 U.S. 601, 42 L.Ed 2d 751, 95 S.Ct. 719 (1975), this

Court, in reaffirming Mitchell and testing the facts of North

Georgia against the requirements of Mitchell, did not spe-

cify the existence of a property interest in the creditor as

a necessary requisite. 419 U.S. at 606-07, 42 L.Ed.2d at 757.

Hutchinson v. Bank of North Carolina, 392 F.Supp. at

898. It should also be noted that the appellants do have

an interest in the monies in appellees’ credit union account,

since the more than $3,700 in public aid which appellees

collected and to which they were not entitled, undoubtedly

enabled appellees to accumulate the money in that account.

In sum, the procedures provided for by the Illinois At-

tachment Act represent a constitutional accommodation be-

tween the interests of the parties. The impact on the debtor

caused by the initial short period during which he is de-

prived of the use of the attached property is far out-

weighed by the serious risks to the creditor, absent attach-

ment. The Act is narrowly drawn to encompass only those

situations where there is a great likelihood that a creditor’s

claim against the debtor will become worthless if the debtor

is forewarned of the attachment. The risk to the creditor

also outweighs the possibility of mistaken attachment, which

is held to a bare minimum by the safeguards built into the

Illinois Act. The creditor must establish his claim against

the debtor, as well as his entitlement to the attachment

remedv, by specific facts sworn to in an affidavit. Where the

claim sounds in tort, the creditor must appear before a

—33—

judge before a writ of attachment will issue. The sheriff

retains possession of the attached property, thus foreclos-

ing creditor abuse. The debtor is entitled to an early hear-

ing on the attachment, and may also recover possession

by filing a bond. The Act ensures that the losing party on

the underlying claim is protected against all loss by re-

quiring the creditor to post a bond. Without the attach-

ment procedure, however, the risk of loss to the creditor

would be very great in the context of the factual situations

at which the Illinois Act is directed.

Finally, it should be emphasized that the Illinois Act, as

applied in this case, must be viewed in light of the important

governmental interest which has been served by the at-

tachment. The Illinois Department of Public Aid brought

the attachment suit against appellees as a part of its gen-

eral effort to eliminate various forms of welfare fraud.

Both state and federal law place the duty upon the De-

partment to make such efforts. Ill. Rev. Stat. 1973, ch. 23,

§11-21 (A. 26-27); 45 C.F.R. §235.110. In dealing with the

type of welfare case at issue, there is a special need for

prompt action because of the great likelihood that the

recipient under investigation will take steps to hinder the

inquiry by either removing the funds from their present

location or leaving the jurisdiction. The State has a sig-

nificant interest in the attached property, which cannot be

sufficiently protected if a lapse of time were to ensue be-

fore seizure of the property. The State has exercised its

statutory authority to investigate and correct fraudulent

acts only after careful investigation, and is able to exer-

cise this authority to attach property only where there is

a very real danger of inability to collect the money to which

it is entitled, absent attachment. This Court has consist-

ently upheld summary procedures like those involved here

where those procedures were employed to secure an im-

—34—

portant governmental interest. Cafeteria and Restaurant

Workers Union v. McElroy, 367 U.S. 886, 6 L.Ed.2d 1230,

81 S.Ct. 1743 (1961); Ewing v. Mytinger & Casselberry,

Inc., 339 U.S. 594, 94 L.Ed. 1088, 70 S.Ct. 870 (1949) ; Fahey

v. Mallonee, 332 U.S. 245, 91 L.Ed. 20380, 67 S.Ct. 1552

(1946); Phillips v. Commissioner, 283 U.S. 589, 75 L.Ed.

1289, 51 S.Ct. 608 (1930); Coffin Bros. & Co. v. Bennett,

277 U.S. 29, 72 L.Ed. 768, 48 S.Ct. 422 (1927); Ownbey v.

Morgan, 256 U.S. 94, 65 L.Ed. 837, 41 S.Ct. 433 (1920); see

Fuentes v. Shevin, 407 U.S. at 90-92, 32 L.Ed.2d at 575-77.

CONCLUSION

For the foregoing reasons, appellants respectfully request

that this Honorable Court vacate the judgment of the dis-

trict court, because that court failed to defer to the Illinois

state court for a resolution of the due process issue pre-

sented in a pending state attachment proceeding.

In the alternative, appellants reqnest that the district

court’s judgment be reversed on the basis that the pro-

cedures prescribed by the Illinois Attachment Act comport

with principles of due process.

Respectfully submitted,

WILLIAM J. SCOTT,

Attorney General of the State of Illinois,

160 North LaSalle Street, Suite 900,

Chicago, Illinois 60601 (312) 793-3500,

Attorney for Appellants.

Pav. J. Barcre.,

StrerpHen R. Sworrorp,

Assistant Attorneys General,

160 North LaSalle Street, Suite 800,

Chicago, Illinois 60601 (312) 793-5635,

Of Counsel.