Coursin v. Harper

¶1dissenting.

¶2In my opinion, the Supreme Court’s decision in North Georgia Finishing v. Di-Chem, Inc., 419 U. S. 601 (95 SC 719, 42 LE2d 751) (1975) invalidated only Georgia’s then existing prejudgment garnishment proceedings. That leaves for our decision the constitutionality of postjudgment garnishment. After careful analysis of Supreme Court decisions, I find nothing which would compel the conclusion that these statutes are unconstitutional, and I find much which indicates that the Court’s concerns which resulted in its voiding various prejudgment summary relief procedures for creditors are totally distinct from and do not govern the postjudgment garnishment situation. I therefore dissent.

¶3The majority opinion states that "an alleged judgment debtor must be afforded due process just as a non-judgment debtor must be afforded due process,” and "we now state plainly, that alleged judgment debtors must be awarded due process in the enforcement of judgments...” This has been the law for at least 61 years. See Coe v. Armour Fertilizer Works, 237 U. S. 413 (1915).

¶4The majority’s pontifications are offered as if they were brand-new and somehow answered the question presented in this case. Actually they are mere restatements of the obvious, and they serve only to beg the question. Of course, judgment debtors are entitled to due process! The hard question — the question the majority never exert themselves to deal with — is what does due process require be done in a postjudgment garnishment situation, and what, if anything, distinguishes the postjudgment situation from the prejudgment garnishments which have been struck down by the Supreme Court? The majority opinion ducks these hard *735questions with two facile and, I think, totally erroneous conclusions: One, that the Supreme Court’s Di-Chem opinion ruled unconstitutional the Georgia postjudgment as well as prejudgment garnishment proceedings; and two, in the majority’s words, "we can see very little difference between prejudgment and postjudgment garnishment proceedings as far as procedural due process of law is concerned.” I submit that anyone who cannot see a big difference has not looked very hard.

¶5A primary invalidating characteristic of those prejudgment actions which have been struck down is that they allowed seizure of a debtor’s property with no opportunity for the debtor to obtain a prompt hearing on the merits of the creditor’s underlying claim — whether it be for a debt owed, or installment payments due, or whatever. In the postjudgment situation, a full adversary process has been afforded the debtor; and the creditor, having prevailed at law, has been awarded a solemn judgment. The threat that onerous possessory actions may be instituted on the basis of spurious claims is wholly eliminated; and this, I think, dramatically distinguishes the postjudgment garnishment situation. A review of the pertinent decisions bears out this analysis.

¶6The seminal case in the field, Sniadach v. Family Finance Corp., 395 U. S. 337 (89 SC 1820, 23 LE2d 349) (1969) struck down the Wisconsin prejudgment garnishment of wages. The court was concerned that under this scheme severe economic hardships could be imposed upon a debtor before there had ever been any adjudication of the merits of the creditor’s underlying claim: "they [the wages] may, it is true, be unfrozen [i.e., released from garnishment] if the trial of the main suit is ever had and the wage earner wins on the merits. But in the interim the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have, whether it be fraud or otherwise.” 395 U. S. 339. Mr. Justice Harlan’s concurring opinion in that case emphasized that in his opinion "due process is afforded only by the kinds of 'notice’ and 'hearing’ which are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his *736property or its unrestricted use. I think this is the thrust of the past cases in this court. [Cits.]” 394 U. S. 343.

¶7Mr. Justice Harlan’s language, set forth above, emphasizing the importance of establishing the probable validity of the underlying claim, was quoted by the court in the summarizing last words of Fuentes v. Shevin, 407 U. S. 67 (92 SC 1983, 32 LE2d 556) (1972), a decision in which the prejudgment replevin of consumer goods was ruled violative of due process precisely because seizure was effected under the challenged statute without a prior adjudication that there was, or was likely to be, any merit at all to the underlying claim for repossession. The statute’s flaw was that "there is no requirement that the applicant make a convincing showing before the seizure that the goods are, in fact, 'wrongfully detained.’ ” 407 U. S. 73-74. Accord, id. pp. 83, 93, 96 n. 32, 97. Once again, as in Sniadach, it was primarily the absence of any preseizure showing on the merits which invalidated the procedure.

¶8The third prejudgment seizure decision emphasizing again the constitutional importance of some prompt showing on the merits of the claim which is the basis of the seizure, was Mitchell v. W. T. Grant Co., 416 U. S. 600 (94 SC 1895, 40 LE2d 406) (1974). That decision upheld the Louisiana sequestration procedure concerning encumbered property, where prior to the seizure the creditor was required to set forth entitling facts under oath and "the statute entitles the debtor immediately to seek dissolution of the writ, which must be ordered unless the creditor 'proves the grounds upon which the writ was issued,’ Art. 3506, the existence of the debt, lien, and delinquency, failing which the court may order return of the property and assess damages in favor of the debtor, including attorney’s fees.” 416 U. S. 606. The Court wrote that "we think it comports with due process to permit.the initial seizure on sworn ex parte documents, followed by the early opportunity to put the creditor to his proof.” 416 U. S. 609. The Court in Mitchell introduced a balancing test between the interests of debtor and creditor, allowing a prompt postseizure hearing to suffice, thus undercutting the import of Fuentes that preseizure hearing was always required save in exceptional *737circumstances. See also Note, 70 Nw. U. L. Rev. 331, 338 (1975).

¶9In North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, the Supreme Court in 1975 struck down Georgia’s statutory scheme for prejudgment garnishment, under which North Georgia Finishing’s corporate bank account was seized. Once more, a prime flaw in the statute was perceived to be the absence of any speedy assessment of the probable merit of the underlying claim: "Here, a bank account... was impounded and ... put totally beyond use during the pendency ofthelitigation on the alleged debt...” 419 U. S. 606. "There is no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment.” Id., p. 607. (Emphasis supplied.) Naturally, these concerns are totally absent in the postjudgment garnishment situation, because the "alleged” debt has been turned into a judgment debt after the debtor had his day in court — a fact which should put to rest any claim that this opinion invalidated Georgia’s postjudgment, as well as prejudgment, garnishment.

¶10Finally, in March of this year the Supreme Court decided Carey v. Sugar, 423 U. S. 814 (96 SC 1208, 47 LE2d 587), (1976) involving New York’s prejudgment attachment statute. The court remanded the case to a three-judge federal court with directions to abstain from deciding the federal constitutional question (the debtor’s alleged claim under 42 USC § 1983) until New York law could be construed by New York courts. The court emphasized that the statute might survive if the state courts put on it a gloss requiring "an opportunity for a preliminary hearing on the merits of a plaintiffs underlying claim,” (47 LE2d 591), after attachment, on a motion to vacate that attachment.

¶11This brief summary of the United States Supreme Court’s five pronouncements in the area of prejudgment seizures is not meant to suggest that the sole disqualifying characteristic of the statutes which fell was the absence of an early hearing on the probable validity of the underlying claim. But each statute which was invalidated had that characteristic, and the court emphasized that egregious unfairness. Those cases must *738be read to mean that this characteristic is a primary flaw in summary creditor actions, and may well have been the precipitating factor in the court’s rulings of unconstitutionality. Naturally, the merit of the underlying claim is exactly what has already been fully adjudicated — and decided against the debtor — in cases in which postjudgment garnishment is sought. Thus, the concerns expressed in Sniadach, Fuentes, Mitchell, North Georgia Finishing and Carey v. Sugar do not translate whole into the postjudgment field. In short, all we can conclude from these cases about the likely fate of postjudgment garnishment statutes is that some sort of postseizure1 hearing will probably be required at which time the debtor may put forth what defenses to the seizure he may have — whether prior payment, statute of limitation, mistaken identity or whatever. These five cases can certainly teach something about the kinds of considerations which are pertinent in weighing postjudgment garnishment statutes; but they certainly may not be read as "ruling” on postjudgment statutes, either expressly or impliedly. Indeed, the area of due process in postjudgment seizure is sufficiently different that commentators in the main do not even address that question at all in analyzing these cases. See, e.g., Hansford, N., Procedural Due Process in the Debtor-Creditor Relationship: The Impact of Di-Chem, 9 Ga. L. Rev. 589 (1975); Note, 1975 Wis. L. Rev. 860 (1975); Note, 70 Nw. U. L. Rev. 331 (1975); Note, 28 Vand. L. Rev. 908 (1975); Note, 63 Geo. L. J. 1337 (1975).

¶12*739The trial court’s order in this case, in pertinent part, ruled this garnishment in attachment unconstitutional because the affidavit was not made before a judicial officer. The majority opinion agrees that "even a temporary [and postjudgment] deprivation without initial judicial supervision cannot pass constitutional muster.” My review of the cases convinces me that nothing therein said compels this conclusion in a postjudgment garnishment case, and under my *740understanding of governing principles that conclusion is wrong. When a judgment has been obtained and collection on.the judgment is sought, I see absolutely no reason why fairness should be thought to require a judicial officer to oversee the initiation of proceedings. I think future Supreme Court decisions will show the majority’s result — with its intimations of unconstitutionality of other postjudgment collection procedures which are not now before us — to have been wholly unnecessary.