The Louisiana Code of Civil Procedure makes available to a
mortgage or lien holder a writ of sequestration to forestall waste
or alienation of the encumbered property. While the writ is
obtainable on the creditor's ex parte
notice to the debtor or an opportunity for hearing, the writ will
issue only upon a verified affidavit and upon a judge's authority
(with respect to the parish involved in this case) after the
creditor has filed a sufficient bond. The debtor may immediately
seek dissolution of the writ, which must be ordered unless the
creditor proves the grounds for issuance (existence of the debt,
lien, and delinquency), failing which the court may order return of
the property and assess damages, including attorney's fees, in the
debtor's favor. Respondent seller filed suit against petitioner in
the New Orleans City Court for the overdue balance of the price of
certain personal property that petitioner had purchased under an
installment sales contract and on which respondent had a vendor's
lien. On respondent's application, the trial judge in accordance
with the Louisiana procedure ordered sequestration of the property
without prior notice or opportunity for a hearing, and denied
petitioner's motion to dissolve the writ on the asserted ground,
that the seizure violated the Due Process
Clause of the Fourteenth Amendment. The appellate courts
The Louisiana sequestration procedure is not
invalid, either on its face or as applied, and, considering the
procedure as a whole, it effects a constitutional accommodation of
the respective interests of the buyer and seller by providing for
judicial control of the process from beginning to end, thus
minimizing the risk of the creditor's wrongful interim possession,
by protecting the debtor's interest in every way except to allow
him initial possession, and by putting the property in the
possession of the party who is able to furnish protection against
loss or damage pending trial on the merits. Fuentes v.
Shevin, 407 U. S. 67
distinguished. Pp. 416 U. S.
263 La. 627, 269
So. 2d 186
Page 416 U. S. 601
WHITE, J.J delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J.,
filed a concurring opinion, post,
p. 416 U. S. 623
BRENNAN, J., filed a dissenting statement, post,
416 U. S. 636
STEWART, J., filed a dissenting opinion, in which DOUGLAS and
MARSHALL, JJ., joined, and in which BRENNAN, J., joined in part,
p. 416 U. S.
MR. JUSTICE WHITE delivered the opinion of the Court.
In this case, a state trial judge in Louisiana ordered the
sequestration of personal property on the application of a creditor
who had made an installment sale of the goods to petitioner and
whose affidavit asserted delinquency and prayed for sequestration
to enforce a vendor's lien under state law. The issue is whether
the sequestration violated the Due Process Clause of the Fourteenth
Amendment because it was ordered ex parte,
notice or opportunity for a hearing.
On February 2, 1972, respondent W. T. Grant Co. filed suit in
the First City Court of the City of New Orleans, Louisiana, against
petitioner, Lawrence Mitchell. The petition alleged the sale by
Grant to Mitchell of a refrigerator, range, stereo, and washing
machine, and an overdue and unpaid balance of the purchase price
for said items in the amount of $574.17. Judgment for
Page 416 U. S. 602
that sum was demanded. It was further alleged that Grant had a
vendor's lien on the goods and that a writ of sequestration should
issue to sequester the merchandise pending the outcome of the suit.
The accompanying affidavit of Grant's credit manager swore to the
truth of the facts alleged in the complaint. It also asserted that
Grant had reason to believe petitioner 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 sequestration is necessary in the
Based on the foregoing petition and affidavit, and without prior
notice to Mitchell or affording him opportunity for hearing, the
judge of the First City Court, Arthur J. O'Keefe, then signed an
order that "a writ of sequestration issue herein" and that
"the Constable of this court sequester and take into his
possession the articles of merchandise described in the foregoing
petition, upon plaintiff furnishing bond in the amount of
Bond in that amount having been filed by the respondent, the
writ of sequestration issued, along with citation to petitioner
Mitchell, citing him to file a pleading or make appearance in the
First City Court of the city of New Orleans within five days. The
citation recited the filing of the writ of sequestration and the
accompanying affidavit, order, and bond. On March 3, Mitchell filed
a motion to dissolve the writ of sequestration issued on February
2. [Footnote 1
] The motion
asserted that the personal property at issue had been seized under
the writ on February 7, 1972, and claimed, first, that the goods
were exempt from seizure under state law, and, second, that the
seizure violated the Due Process Clauses of the State and Federal
Page 416 U. S. 603
in that it had occurred without prior notice and opportunity to
defend petitioner's right to possession of the property. [Footnote 2
] The motion came on for
hearing on March 14. It was then stipulated that a vendor's lien
existed on the items, arguments of counsel were heard, and, on
March 16, the motion to dissolve was denied. The goods were held
not exempt from seizure under state law. The trial court also ruled
that "the provisional seizure enforced through sequestration" was
not a denial of due process of law. "To the contrary," the trial
"plaintiff insured defendant's right to due process by
proceeding in accordance with Louisiana Law, as opposed to any type
of self-help seizure which would have denied defendant possession
of his property without due process."
The appellate courts of Louisiana refused to disturb the rulings
of the trial court, the Supreme Court of Louisiana expressly
rejecting petitioner's due process claims pressed under the Federal
Constitution. 263 La. 627, 269 So. 2d
(1972). We granted certiorari, 411 U.S. 981 (1973), and now
affirm the judgment of the Louisiana Supreme Court.
Petitioner's basic proposition is that, because he had
possession of and a substantial interest in the sequestered
property, the Due Process Clause of the Fourteenth Amendment
necessarily forbade the seizure without prior notice and
opportunity for a hearing. In the circumstances presented here, we
Page 416 U. S. 604
Petitioner no doubt "owned" the goods he had purchased under an
installment sales contract, but his title was heavily encumbered.
The seller, W.T. Grant Co., also had an interest in the property,
for state law provided it with a vendor's lien to secure the unpaid
balance of the purchase price. Because of the lien, Mitchell's
right to possession and his title were subject to defeasance in the
event of default in paying the installments due from him. His
interest in the property, until the purchase price was paid in
full, was no greater than the surplus remaining, if any, after
foreclosure and sale of the property in the event of his default
and satisfaction of outstanding claims. See
Civ.Proc.Ann., Art. 2373 (101). [Footnote 3
] The interest of Grant, as seller of the
property and holder of a vendor's lien, was measured by the unpaid
balance of the purchase price. The monetary value of that interest
in the property diminished as payments were made, but the value of
the property as security also steadily diminished over time as it
was put to its intended use by the purchaser.
Plainly enough, this is not a case where the property
sequestered by the court is exclusively the property of the
defendant debtor. The question is not whether a debtor's property
may be seized by his creditors, pendente lite,
hold no present interest in the property sought to be seized. The
reality is that both seller and buyer had current, real interests
in the property, and the definition of property rights is a matter
of state law. Resolution of the due process question must take
account not only of the interests of the buyer of the property, but
those of the seller as well.
With this duality in mind, we are convinced that the
Page 416 U. S. 605
Louisiana sequestration procedure is not invalid either on its
face or as applied. Sequestration under the Louisiana statutes is
the modern counterpart of an ancient civil law device to resolve
conflicting claims to property. Historically, the two principal
concerns have been that, pending resolution of the dispute, the
property would deteriorate or be wasted in the hands of the
possessor, and that the latter might sell or otherwise dispose of
the goods. A minor theme was that official intervention would
forestall violent self-help and retaliation. See
Judicial Sequestration in Louisiana: Some Account of Its Sources,
30 Tul.L.Rev. 201, 206 (1956).
Louisiana statutes provide for sequestration where
"one claims the ownership or right to possession of property, or
a mortgage, lien, or privilege thereon . . . 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."
Art. 3571. The writ, however, will not issue on the conclusory
allegation of ownership or possessory rights. Article 3501
] provides that the
writ of sequestration shall issue
"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"
shown by a verified petition or affidavit. In the parish where
Page 416 U. S. 606
case arose, the clear showing required must be made to a judge,
] and the writ will
issue only upon his authorization and only after the creditor
seeking the writ has filed a sufficient bond [Footnote 6
] to protect the vendee against all
damages in the event the sequestration is shown to have been
improvident. [Footnote 7
3501 and 3574.
The writ is obtainable on the creditor's ex parte
application, without notice to the debtor or opportunity for a
hearing, but 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. 350, 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. [Footnote 8
Page 416 U. S. 607
The debtor, with or without moving to dissolve the
sequestration, may also regain possession by filing his own bond to
protect the creditor against interim damage to him should he
ultimately win his case and have judgment against the debtor for
the unpaid balance of the purchase price which was the object of
the suit and of the sequestration. Arts. 3507 and 3508. [Footnote 9
In our view, this statutory procedure effects a constitutional
accommodation of the conflicting interests of the parties. We
cannot accept petitioner's broad assertion that the Due Process
Clause of the Fourteenth Amendment guaranteed to him the use and
possession of the goods until all issues in the case were
judicially resolved after full adversary proceedings had been
completed. It is certainly clear under this Court's precedents that
issues can be limited in actions for possession. Indeed, in
Grant Timber Mfg. Co. v. Gray, 236 U.
(1915) (Holmes, J.), the Court upheld such
limitations in possessory actions for real property in Louisiana.
See also Bianchi v. Morales, 262 U.
(1923); Lindsey v. Normet, 405 U. S.
(1972). Petitioner's claim must accordingly be
narrowed to one for a hearing on the issues in the possessory
action -- default, the existence of a lien, and possession of the
debtor -- before property is taken.
As to this claim, the seller here, with a vendor's lien to
secure payment of the unpaid balance of purchase price, had the
right either to be paid in accordance with its contract or to have
possession of the goods for the purpose of foreclosing its lien and
recovering the unpaid balance. By complaint and affidavit, the
Page 416 U. S. 608
to facts that would entitle it to immediate possession of the
goods under its contract, undiminished in value by further
deterioration through use of the property by the buyer. Wholly
aside from whether the buyer, with possession and power over the
property, will destroy or make away with the goods, the buyer in
possession of consumer goods will undeniably put the property to
its intended use, and the resale value of the merchandise will
steadily decline as it is used over a period of time. Any
installment seller anticipates as much, but he is normally
protected because the buyer's installment payments keep pace with
the deterioration in value of the security. Clearly, if payments
cease and possession and use by the buyer continue, the seller's
interest in the property as security is steadily and irretrievably
eroded until the time at which the full hearing is held.
The State of Louisiana was entitled to recognize this reality,
and to provide somewhat more protection for the seller. This it did
in Orleans Parish by authorizing the sequestration of property by a
judge. At the same time, the buyer being deprived of possession,
the seller was required to put up a bond to guarantee the buyer
against damage or expense, including attorney's fees in the event
the sequestration is shown to be mistaken or otherwise improvident.
The buyer is permitted to regain possession by putting up his own
bond to protect the seller. Absent that bond, which petitioner did
not file in this case, the seller would be unprotected against the
inevitable deterioration in the value of his security if the buyer
remained in possession pending trial on the merits. The debtor,
unlike the creditor, does not stand ready to make the opposing
party whole if his possession, pending a prior hearing, turns out
to be wrongful.
Second, there is the real risk that the buyer, with possession
and power over the goods, will conceal or
Page 416 U. S. 609
transfer the merchandise to the damage of the seller. This is
one of the considerations weighed in the balance by the Louisiana
law in permitting initial sequestration of the property. An
important factor in this connection is that, under Louisiana law,
the vendor's lien expires if the buyer transfers possession. It
follows that, if the vendor is to retain his lien, superior to the
rights of other creditors of the buyer, it is imperative when
default occurs that the property be sequestered in order to
foreclose the possibility that the buyer will sell or otherwise
convey the property to third parties against whom the vendor's lien
will not survive. The danger of destruction or alienation cannot be
guarded against if notice and a hearing before seizure are
supplied. The notice itself may furnish a warning to the debtor
acting in bad faith.
Third, there is scant support in our cases for the proposition
that there must be final judicial determination of the seller's
entitlement before the buyer may be even temporarily deprived of
possession of the purchased goods. On the contrary, it seems
apparent that the seller with his own interest in the disputed
merchandise would need to establish, 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.
Bell v. Burson, 402 U. S. 535
(1971); Ewing v. Mytinger & Casselberry, 339 U.
(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
uncomplicated matters that lend themselves to documentary proof,
and 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. The nature of the
issues at stake minimizes the risk that the
Page 416 U. S. 610
writ will be wrongfully issued by a judge. The potential damages
award available, 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 minimizing this
Fourth, we remain unconvinced that the impact on the debtor of
deprivation of the household goods here in question overrides his
inability to make the creditor whole for wrongful possession, the
risk of destruction or alienation if notice and a prior hearing are
supplied, and the low risk of a wrongful determination of
possession through the procedures now employed.
Finally, the debtor may immediately have a full hearing on the
matter of possession following the execution of the writ, thus
cutting to a bare minimum the time of creditor- or court-supervised
possession. The debtor in this case, who did not avail himself of
this opportunity, can hardly expect that his argument on the
severity of deprivation will carry much weight, and, even assuming
that there is real impact on the debtor from loss of these goods,
pending the hearing on possession, his basic source of income is
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
325 U. S. 710
(1945). Due process of law guarantees "no particular form of
procedure; it protects substantial rights." NLRB v. Mackay
Co., 304 U. S. 333
304 U. S. 351
(1938). "The very nature of due process negates any concept of
inflexible procedures universally applicable to every imaginable
situation." Cafeteria Workers v. McElroy, 367 U.
, 367 U. S. 895
(1961); Stanley v. Illinois, 405 U.
, 405 U. S. 650
(1972). Considering the Louisiana procedure as a whole, we are
convinced that the State has reached a constitutional accommodation
of the respective interests of buyer and seller.
Page 416 U. S. 611
Petitioner asserts that his right to a hearing before his
possession is in any way disturbed is nonetheless mandated by a
long line of cases in this Court, culminating in Sniadach v.
Family Finance Corp., 395 U. S. 337
(1969), and Fuentes v. Shevin, 407 U. S.
(1972). The pre-Sniadach
cases are said by
petitioner to hold that "the opportunity to be heard must precede
any actual deprivation of private property." [Footnote 10
] Their import, however, is not so
clear as petitioner would have it: they merely stand for the
proposition that a hearing must be had before one is finally
deprived of his property, and do not deal at all with the need for
a pre-termination hearing where a full and immediate
post-termination hearing is provided. The usual rule has been,
"[w]here only property rights are involved, mere postponement of
the judicial enquiry is not a denial of due process if the
opportunity given for ultimate judicial determination of liability
Phillips v. Commissioner, 283 U.
, 283 U. S.
-597 (1931). See also Scottish Union &
National Ins. Co. v. Bowland, 196 U.
, 196 U.S.
Page 416 U. S. 612
v. United States, 102 U. S. 586
102 U. S.
-594 (1881). This generality sufficed to decide
relatively modern cases. For example, in Ewing v. Mytinger
& Casselberry, 339 U. S. 594
(1950), the statute at issue permitted multiple seizures of
misbranded articles in commerce
"'when the Administrator has probable cause to believe from
facts found, without hearing, by him or any officer or employee of
the Agency, that the misbranded article . . . would be in a
material respect misleading to the injury or damage of the
purchaser or consumer.'"
at 339 U. S.
-596. The specific seizure challenged, made
administratively without prior notice or hearing, concerned a
concentrate of alfalfa, watercress, parsley, and synthetic
vitamins, combined in a package with mineral tablets. There was no
claim or suggestion of any possible threat to health. The sole
official claim was that the labeling was misleading to the alleged
damage of the purchaser. The Court sustained the ex parte
seizure, saying that
"[w]e have repeatedly held that no hearing at the preliminary
stage is required by due process so long as the requisite hearing
is held before the final administrative order becomes
at 339 U. S. 598
"It is sufficient, where only property rights are concerned, that
there is at some stage an opportunity for a hearing and a judicial
at 339 U. S. 599
Page 416 U. S. 613
More precisely in point, the Court had unanimously approved
prejudgment attachment liens effected by creditors, without notice,
hearing, or judicial order, saying that
"nothing is more common than to allow parties alleging
themselves to be creditors to establish in advance by attachment a
lien dependent for its effect upon the result of the suit. . . .
The fact that the execution is issued in the first instance by an
agent of the State, but not from a Court, followed as it is by
personal notice and a right to take the case into court, is a
familiar method in Georgia, and is open to no objection."
Coffin Bros. v. Bennett, 277 U. S.
, 277 U. S. 31
(1928). To the same effect was the earlier case of Ownbey v.
Morgan, 256 U. S. 94
(1921). Furthermore, based on Ownbey
the Court later sustained the constitutionality of the Maine
attachment statute. McKay v. McInnes,
279 U.S. 820 (1929).
In that case, a nonresident of Maine sued in the Maine courts to
collect a debt from a resident of the State. As permitted by
statute, and as an integral part of instituting the suit, the
creditor attached the properties of the defendant, without notice
and without judicial process of any kind. In sustaining the
procedure, the Maine Supreme Court, 127 Me. 110, 141 A. 699 (1928),
described the attachment as designed to create a lien for the
creditor at the outset of the litigation.
"Its purpose is simply to secure to the creditor the property
which the debtor has at the time it is made so that it may be
seized and levied upon in satisfaction of the debt after judgment
and execution may be obtained."
Page 416 U. S. 614
at 115, 141 A. at 702. The attachment was deemed "part of the
remedy provided for the collection of the debt," ibid.,
and represented a practice that "had become fully established in
Massachusetts, part of which Maine was at the time of the adoption
of the Federal Constitution." Id.
at 114, 141 A. at 702.
The judgment of the Maine court was affirmed without opinion,
In Sniadach v. Family Finance Corp., supra,
it was said
and like cases dealt with "[a] procedural rule
that may satisfy due process for attachments in general" but one
that would not "necessarily satisfy procedural due process in every
case," nor one that "gives necessary protection to all property in
its modern forms." 395 U.S. at 395 U. S. 340
involved the prejudgment garnishment of wage"a
specialized type of property presenting distinct problems in our
economic system." Ibid.
Because "[t]he leverage of the
creditor on the wage earner is enormous" and because "prejudgment
garnishment of the Wisconsin type may, as a practical matter, drive
a wage-earning family to the wall," it was held that the Due
Process Clause forbade such garnishment absent notice and prior
at 395 U. S.
-342. In Sniadach,
the Court also observed
that garnishment was subject to abuse by creditors without valid
claims, a risk minimized by the nature of the security interest
here at stake and the protections to the debtor offered by
Louisiana procedure. Nor was it apparent in Sniadach
what speed the debtor could challenge the validity of the
garnishment, and obviously the creditor's claim could not rest on
the danger of destruction of wages, the property seized, since
their availability to satisfy the debt remained within the power of
the debtor who could simply leave his job. The suing creditor in
had no prior interest in the property attached,
and the opinion did not purport to govern the typical case of
Page 416 U. S. 615
the installment seller who brings a suit to collect an unpaid
balance and who does not seek to attach wages pending the outcome
of the suit but to repossess the sold property on which he had
retained a lien to secure the purchase price. This very case soon
came before the Court in Fuentes v. Shevin,
constitutionality of the Florida and Pennsylvania replevin statutes
was at issue. Those statutes permitted the secured installment
seller to repossess the goods sold, without notice or hearing and
without judicial order or supervision, but with the help of the
sheriff operating under a writ issued by the court clerk at the
behest of the seller. Because carried out without notice or
opportunity for hearing and without judicial participation, this
kind of seizure was held violative of the Due Process Clause. This
holding is the mainstay of petitioner's submission here. But we are
convinced that Fuentes
was decided against a factual and
legal background sufficiently different from that now before us,
and that it does not require the invalidation of the Louisiana
sequestration statute, either on its face or as applied in this
The Florida law under examination in Fuentes
repossession of the sold goods without judicial order, approval, or
participation. A writ of replevin was employed, but it was issued
by the court clerk. As the Florida law was perceived by this Court,
"[t]here is no requirement that the applicant make a convincing
showing before the seizure," 407 U.S. at 407 U. S. 73
the law required only "the bare assertion of the party seeking the
writ that he is entitled to one" as a condition to the clerk's
issuance of the writ. Id.
at 407 U. S. 74
The Court also said that, under the statute the defendant buyer
would "eventually" have an opportunity for a hearing, "as the
defendant in the trial of the court action for repossession. . . ."
at 407 U. S. 75
The Pennsylvania law was considered to be essentially the same as
Page 416 U. S. 616
of Florida except that it did "not require that there ever be
opportunity for a hearing on the merits of the conflicting claims
to possession of the replevied property." Id.
407 U. S. 77
The party seeking the writ was not obliged to initiate a court
action for repossession, was not required formally to allege that
he was entitled to the property, and had only to file an affidavit
of the value of the property sought to be replevied. The Court
distinguished the Pennsylvania and Florida procedures from that of
the common law where, the Court said,
"a state official made at least a summary determination of the
relative rights of the disputing parties before stepping into the
dispute and taking goods from one of them."
at 407 U. S.
The Louisiana sequestration statute followed in this case
mandates a considerably different procedure. A writ of
sequestration is available to a mortgage or lien holder to
forestall waste or alienation of the property, but, different from
the Florida and Pennsylvania systems, bare, conclusory claims of
ownership or lien will not suffice under the Louisiana statute.
Article 3501 authorizes the writ
"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"
shown by verified petition or affidavit. Moreover, in the parish
where this case arose, the requisite showing must be made to a
judge, and judicial authorization obtained. Mitchell was not at the
unsupervised mercy of the creditor and court functionaries. The
Louisiana law provides for judicial control of the process from
beginning to end. [Footnote
] This control is one of the measures
Page 416 U. S. 617
adopted by the State to minimize the risk that the ex
procedure will lead to a wrongful taking. It is
buttressed by the provision that should the writ be dissolved there
are "damages for the wrongful issuance of a writ" and for
attorney's fees "whether the writ is dissolved on motion or after
trial on the merits." Art. 3506.
The risk of wrongful use of the procedure must also be judged in
the context of the issues which are to be determined at that
proceeding. In Florida and Pennsylvania property was only to be
replevied in accord with state policy if it had been "wrongfully
detained." This broad "fault" standard is inherently subject to
factual determination and adversarial input. As in Bell v.
where a driver's license was suspended without a prior
hearing, when the suspension was premised on a fault standard,
see Vlandis v. Kline, 412 U. S. 441
412 U. S.
-447 (1973), in Fuentes,
this fault standard
for replevin was thought ill-suited for preliminary ex
determination. In Louisiana, on the other hand, the
facts relevant to obtaining a writ of sequestration are narrowly
confined. As we have indicated, documentary
Page 416 U. S. 618
proof is particularly suited for questions of the existence of a
vendor's lien and the issue of default. There is thus far less
danger here that the seizure will be mistaken and a corresponding
decrease in the utility of an adversary hearing which will be
immediately available in any event.
Of course, as in Fuentes,
consideration of the impact
on the debtor remains. Under Louisiana procedure, however, the
debtor, Mitchell, was not left in limbo to await a hearing that
might or might not "eventually" occur, as the debtors were under
the statutory schemes before the Court in Fuentes.
Louisiana law expressly provides for an immediate hearing and
dissolution of the writ "unless the plaintiff proves the grounds
upon which the writ was issued." Art. 3506.
To summarize, the Louisiana system seeks to minimize the risk of
error of a wrongful interim possession by the creditor. The system
protects the debtor's interest in every conceivable way, except
allowing him to have the property to start with, and this is done
in pursuit of what we deem an acceptable arrangement pendente
to put the property in the possession of the party who
furnishes protection against loss or damage to the other pending
trial on the merits.
The Court must be sensitive to the possible consequences,
already foreseen in antiquity, of invalidating this state statute.
Doing so might not increase private violence, but self-help
repossession could easily lessen protections for the debtor.
See, for example, Adams v. Southern California First National
492 F.2d 324 (CA9 1973). [Footnote 13
] Here, the initial hardship to the debtor
Page 416 U. S. 619
is limited, the seller has a strong interest, the process
proceeds under judicial supervision and management, and the
prevailing party is protected against all loss. Our conclusion is
that the Louisiana standards regulating the use of the writ of
sequestration are constitutional. Mitchell
Page 416 U. S. 620
was not deprived of procedural due process in this case.
] The judgment
of the Supreme Court of Louisiana is affirmed.
APPENDIX TO OPINION OF THE COURT
PROVISIONS OF THE LOUISIANA CODE OF CIVIL PROCEDURE
Art. 281. Certain articles not applicable to Civil District
Court for the Parish of Orleans
The provisions of Articles 282 through 286 do not apply to the
clerk and the deputy clerks of the Civil District Court for the
Parish of Orleans.
Art. 282. Acts which may be done by district court clerk
The clerk of a district court may:
(1) Grant an appeal and fix the return day thereof; fix the
amount of the bond for an appeal, or for the issuance of a writ of
attachment or of sequestration, or for the release of property
seized under any writ, unless fixed by law; appoint an attorney at
law to represent a nonresident, absent, incompetent, or
unrepresented defendant; or dismiss without prejudice, on
application of plaintiff, an action or proceeding in which no
exception, answer, or intervention has been filed; and. . . .
* * * *
Page 416 U. S.
Art. 283. Orders and judgments which may be signed by district
* * * *
(2) An order for the issuance of executory process, of a writ of
attachment or of sequestration, or of garnishment process under a
writ of fieri facias,
attachment, or of sequestration; the
release under bond of property seized under a writ of attachment or
of sequestration; or to permit the filing of an intervention. . .
Art. 325. Right of entry for execution; may require assistance
of others if resistance offered or threatened
In the execution of a writ, mandate, order, or judgment of a
court, the sheriff may enter on the lands, and into the residence
or other building, owned or occupied by the judgment debtor or
defendant. . . .
Art. 2373. Distribution of proceeds of sale
After deducting the costs, the sheriff shall first pay the
amount due the seizing creditor, then the inferior mortgages,
liens, and privileges on the property sold, and shall pay to the
debtor whatever surplus may remain.
Art. 3501. Petition; affidavit; security
A writ of attachment or of sequestration shall issue 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 shown by the petition verified by, or by the
separate affidavit of, the petitioner, his counsel or agent.
The applicant shall furnish security as required by law for the
payment of the damages the defendant may sustain when the writ is
Art. 3504. Return of sheriff; inventory
The sheriff, after executing a writ of attachment or of
sequestration, shall deliver to the clerk of the court from
Page 416 U. S. 622
which he writ issued a written return stating the manner in
which he executed the writ. He shall annex to the return an
inventory of the property seized.
Art. 3506. Dissolution of writ; damages
The defendant by contradictory motion may obtain the dissolution
of a writ of attachment or of sequestration, unless the plaintiff
proves the grounds upon which the writ was issued. If the writ of
attachment or of sequestration is dissolved, the action shall then
proceed as if no writ had been issued.
The court may allow damages for the wrongful issuance of a writ
of attachment or of sequestration on a motion to dissolve, or on a
reconventional demand. Attorney's fees for the services rendered in
connection with the dissolution of the writ may be included as an
element of damages whether the writ is dissolved on motion or after
trial on the merits.
Art. 3507. Release of property by defendant; security
A defendant may obtain the release of the property seized under
a writ of attachment or of sequestration by furnishing security for
the satisfaction of any judgment which may be rendered against
Art. 3508. Amount of security for release of attached or
The security for the release of property seized under a writ of
attachment or of sequestration shall exceed by one-fourth the value
of the property as determined by the court, or shall exceed by
one-fourth the amount of the claim, whichever is the lesser.
Art. 3510. Necessity for judgment and execution
Except as provided in Article 3513 [perishables], a final
judgment must be obtained in an action where a writ of attachment
or of sequestration has issued before the property seized can be
sold to satisfy the claim.
Page 416 U. S. 623
Art. 3571. Grounds for sequestration
When one claims the ownership or right to possession of
property, or a mortgage, lien, or privilege thereon, he may have
the property seized under a writ of sequestration, 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.
Art. 3574. Plaintiff's security
An applicant for a writ of sequestration shall furnish security
for an amount determined by the court to be sufficient to protect
the defendant against any damage resulting from a wrongful
issuance, unless security is dispensed with by law.
Art. 3576. Release of property under sequestration
If the defendant does not effect the release of property seized
under a writ of sequestration, as permitted by Article 3507, within
ten days of the seizure, the plaintiff may effect the release
thereof by furnishing the security required by Article 3508.
The motion asked for dissolution of the writ with respect to the
refrigerator, stove, and washer. For some reason, unexplained by
the parties, the motion was not addressed to the stereo.
There is some dispute between the parties as to when the writ
was actually executed by the sheriff. The sheriff's return,
furnished by petitioner but apparently not in the record below,
indicates that execution was on the 18th of February, rather than
on the 7th. The Louisiana Supreme Court assumed that the writ was
executed on the 7th. Because we see no legal consequence attaching
to a choice of dates, we assume for purposes of decision that the
writ was executed on the 7th.
Article 2373 and other pertinent provisions of the Code,
including those referred to in the text, are set out in the
app|>Appendix to this opinion.
Historically, the writ would issue only if the creditor had
"good reason to fear" that the debtor would damage, alienate or
waste the goods, and the creditor was required to show the grounds
for such fear. Under present law, however, the apprehension of the
creditor is no longer the issue, and the writ may be obtained when
the goods are within the power of the debtor. Reporter's Comment
(a) to La.Code Civ.Proc.Ann., Art. 3571. The necessity of showing
such "power" is not irrelevant, because the vendor's privilege will
not lie against goods not within the "power" of the debtor.
Margolin, Civil Law, Vendor's Privilege, 4 Tul.L.Rev. 239 (1930);
H. Daggett, On Louisiana Privileges and Chattel Mortgages § 51
Articles 282 and 283 of the Code provide, generally, that the
court clerk may issue writs of sequestration. But Art. 281 confines
the authority to the judge in Orleans Parish. There is no dispute
in this case that judicial authority for the writ was required, and
that it was obtained as the statute requires. The validity of
procedures obtaining in areas outside Orleans Parish is not at
As previously noted, the judgment prayed for in this case was in
the amount of $574.17. Grant was ordered to furnish security in the
amount of $1,125.
When a writ is issued by the judge, it is served upon the debtor
by the sheriff, Art. 3504, who thereafter becomes responsible for
the property's safekeeping. See
Johnson, Attachment and
Sequestration: Provisional Remedies Under the Louisiana Code of
Civil Procedure, 38 Tul.L.Rev. 1, 21-22 (1963). The plaintiff
creditor, however, see
Art. 3576, may himself take
possession of the goods if the defendant within 10 days does not
secure possession of the goods by posting his own bond as permitted
by Art. 3507, but he has no right to sell the goods until final
judgment on the merits. Art. 3610.
Damages would compensate for the period during which the buyer
was deprived of the use of the property, but are not restricted to
pecuniary loss. They may encompass injury to social standing or
reputation, as well as humiliation and mortification. Johnson,
7, at 28.
The debtor's bond necessary to repossess the property
"shall exceed by one-fourth the value of the property as
determined by the court, or shall exceed by one-fourth the amount
of the claim, whichever is the lesser."
Petitioner relies particularly on: Covey v. Town of
Somers, 351 U. S. 141
(1956); New York v. New York, N.H. & H.R. Co.,
344 U. S. 293
(1953); Mullane v. Central Hanover Bank & Trust Co.,
339 U. S. 306
(1950); Griffin v. Griffin, 327 U.
(1946); Opp Cotton Mills v.
Administrator, 312 U. S. 126
(1941); West Ohio Gas Co. v.Pub. Util. Comm'n,
294 U. S. 63
(1935); United States v. Illinois Central R. Co.,
291 U. S. 457
(1934); Southern R. Co. v. Virginia, 290 U.
(1933); Goldsmith v. Board of Tax
Appeals, 270 U. S. 117
(1926); Coe v. Armour Fertilizer Works, 237 U.
(1915); Londoner v. Denver, 210 U.
(1908); Central of Georgia R. Co. v.
Wright, 207 U. S. 127
(1907); Roller v. Holly, 176 U. S. 398
(1900); Hovey v. Elliott, 167 U.
(1897); Scott v. McNeal, 154 U. S.
(1894); Windsor v. McVeigh, 93 U. S.
(1876); Ray v.
23 Wall. 128 (1875); Rees v.
City of Watertown,
19 Wall. 107 (1874);
1 Wall. 223 (1864). Brief for Petitioner
Conceding that the multiple seizure might cause irreparable
damage to a business, the Court responded:
"The impact of the initiation of judicial proceedings is often
serious. Take the case of the grand jury. It returns an indictment
against a man without a hearing. It does not determine his guilt;
it only determines whether there is probable cause to believe he is
guilty. But that determination is conclusive on the issue of
probable cause. As a result, the defendant can be arrested and held
for trial. See Beavers v. Henkel, 194 U. S.
, 194 U. S. 85
; Ex parte
United States, 287 U. S. 241
, 287 U. S.
. The impact of an indictment is on the reputation or
liberty of a man. The same is true where a prosecutor files an
information charging violations of the law. The harm to property
and business can also be incalculable by the mere institution of
proceedings. Yet it has never been held that the hand of government
must be stayed until the courts have an opportunity to determine
whether the government is justified in instituting suit in the
courts. Discretion of any official may be abused. Yet it is not a
requirement of due process that there be judicial inquiry before
discretion can be exercised."
339 U.S. at 339 U. S.
The approval of a writ of sequestration is not, as petitioner
contends, a mere ministerial act.
"Since a writ of sequestration issues without a hearing,
specific facts as to the grounds relied upon for issuance must be
contained in the verified petition in order that the issuing judge
can properly evaluate the grounds."
Wright v. Hughes,
254 So. 2d 293, 296-297 (La.Ct.App.
1971) (on rehearing). To the same effect is Hancock Bank v.
256 La. 643, 237 So. 2d
(1970), where the court held that a simple allegation of
indebtedness for money due on an automobile, where no deed of trust
was referred to or produced, did not satisfy the "specific facts"
test. The court stated:
of the rules established for the
issuance of conservatory writs has been uniformly required by the
Courts in the past. It is implicit in those remedies that they
should not be availed of unless the conditions which permit them
exist; that is to say, it is a prerequisite to their issuance that
proper grounds be alleged and sworn to."
at 653-654, 237 So. 2d at 672. (Emphasis added.)
Zion Mercantile Co. v. Pierce,
163 La. 477, 112 So. 371
(1927), upon which petitioner relies, is not to the contrary. The
Louisiana court merely held there that it is not necessary to
"file" papers requesting the writ with the clerk, or pay court
costs, before the judge is empowered to issue the writ.
The advisability of requiring prior notice and hearing before
repossession has been under study for several years. A number of
possibilities have been put forward to modify summary creditor
remedies, whether taken through some form of court process or
effected by self-help under Art. 9 of the Uniform Commercial Code,
§ 9-503. Influenced by Sniadach,
and providing pre-seizure
notice and hearing, are two model acts drafted by the National
Consumer Law Center: National Consumer Act §§ 5.206-5.208 (1970),
and Model Consumer Credit Act § 7.205 (1973). Other similar reforms
are reflected in the Report of the National Commission on Consumer
Finance, Consumer Credit in the United States 301 (1972); the
Wisconsin Consumer Act, Wis.Stat.Ann. §§ 421.101-427.105 (special
pamphlet 1973); and the amendments to the Illinois Replevin
Statute, Public Act 78-287, Ill.Laws 1973. Looking in the other
direction and leaving summary procedures intact for the most part
are the National Conference of Commissioners on Uniform State Laws,
Committee on Uniform Consumer Credit Code, Uniform Consumer Credit
Code, Working Redraft No. 5, Nov. 1973, §§ 5.110, 5.112; and the
Permanent Editorial Board for the Uniform Commercial Code, Review
Committee for Art. 9 of the Uniform Commercial Code, Final Report,
§ 9-503 (Apr. 25, 1971), together with revised Art. 9 of the
U.C.C., 1972 Official Text and Comments, § 903.
As revealed in the various studies and proposals, the principal
question yet to be satisfactorily answered is the impact of prior
notice and hearing on the price of credit, and, more particularly,
of the mix of procedural requirements necessary to minimize the
cost. The commentators are in the throes of debate, see,
Symposium, Creditors' Rights, 47 S.Cal.L.Rev. 1-164
(1973), and basic questions remain unanswered. See
Note, Self-Help Repossession; the Constitutional
Attack, the Legislative Response, and the Economic Implications, 62
Geo.L.J. 273 (1973).
We indicate no view whatsoever on the desirability of one or
more of the proposed reforms. The uncertainty evident in the
current debate suggests caution in the adoption of an inflexible
constitutional rule. Our holding in this case is limited to the
constitutionality of the Louisiana sequestration procedures.
We are advised by counsel for petitioner of a tide of cases
and are cautioned that affirmance in
this case would set off a riptide with considerable consequences.
We perceive no such result. Our decision will not affect recent
cases dealing with garnishment or summary self-help remedies of
secured creditors or landlords. Nor is it at all clear, with an
exception or two, that the reported cases invalidating replevin or
similar statutes dealt with situations where there was judicial
supervision of seizure or foreclosure from the outset.
MR. JUSTICE POWELL concurring.
In sweeping language, Fuentes v. Shevin, 407 U. S.
(1972), enunciated the principle that the
constitutional guarantee of procedural due process requires an
adversary hearing before an individual may be temporarily deprived
of any possessory interest in tangible personal property, however
brief the dispossession and however slight his monetary interest in
the property. The Court's decision today withdraws significantly
from the full reach of that principle, and to this extent I think
it fair to say that the Fuentes
opinion is overruled.
I could have agreed that the Florida and Pennsylvania statutes
were violative of due process because
Page 416 U. S. 624
of their arbitrary and unreasonable provisions. It seems to me,
however, that it was unnecessary for the Fuentes
to have adopted so broad and inflexible a rule, especially one that
considerably altered settled law with respect to commercial
transactions and basic creditor-debtor understandings. Narrower
grounds existed for invalidating the replevin statutes in that
The constitutional guarantee of procedural due process applies
to governmental deprivation of a legitimate "property" or "liberty"
interest within the meaning of the Fifth or Fourteenth Amendment.
It requires that any such deprivation be accompanied by minimum
procedural safeguards, including some form of notice and a hearing.
Arnett v. Kennedy, ante,
p. 416 U. S. 164
(separate opinion of POWELL, J.); Board of Regents v.
Roth, 408 U. S. 564
(1972); Perry v. Sindermann, 408 U.
(1972). In the present case, there can be no
doubt that, under state law, both petitioner and respondent had
property interests in the goods sought to be sequestered.
Petitioner, as the vendee-debtor under an installment sales
contract, had both title and possession of the goods subject to his
contractual obligation to continue the installment payments.
Respondent, as the vendor-creditor, had a vendor's lien on the
goods as security for the unpaid balance.
The determination of what due process requires in a given
context depends on a consideration of both the nature of the
governmental function involved and the private interests affected.
Cafeteria Workers v. McElroy, 367 U.
, 367 U. S. 895
(1961); Goldberg v. Kelly, 397 U.
, 397 U. S.
-266 (1970). The governmental function in the instant
case is to provide a reasonable and fair framework of rules which
facilitate commercial transactions on a
Page 416 U. S. 625
credit basis. The Louisiana sequestration statute is designed to
protect the legitimate interests of both creditor and debtor. As to
the creditor, there is the obvious risk that a defaulting debtor
may conceal, destroy, or further encumber the goods, and thus
deprive the creditor of his security. This danger is particularly
acute where, as here, the vendor's lien may be vitiated merely by
transferring the goods from the debtor's possession. In addition,
the debtor's continued use of the goods diminishes their resale
value. In these circumstances, a requirement of notice and an
adversary hearing before sequestration would impose a serious risk
that a creditor could be deprived of his security.
Against this concern must be balanced the debtor's real interest
in uninterrupted possession of the goods, especially if the
sequestration proves to be unjustified. To be sure, repossession of
certain items of personal property, even for a brief period, may
cause significant inconvenience. But it can hardly be said that
temporary deprivation of such property would necessarily place a
debtor in a "brutal need" situation. Goldberg v. Kelly, supra;
Arnett v. Kennedy, supra.
In my view, the constitutional guarantee of procedural due
process is fully satisfied in cases of this kind where state law
requires, as a precondition to invoking the State's aid to
sequester property of a defaulting debtor, that the creditor
furnish adequate security and make a specific factual showing
before a neutral officer or magistrate of probable cause to believe
that he is entitled to the relief requested. An opportunity for an
adversary hearing must then be accorded promptly after
sequestration to determine the merits of the controversy, with the
burden of proof on the creditor.
The Louisiana statute sub judice
requirements, and differs materially from the Florida and
Page 416 U. S. 626
Pennsylvania statutes in Fuentes.
] Those statutes did not require an
applicant for a writ of replevin to make any factually convincing
showing that the property was wrongfully detained or that he was
entitled to the writ. Moreover, the Florida statute provided only
that a post-seizure hearing be held eventually on the merits of the
competing claims, and it required the debtor to initiate that
proceeding. The Pennsylvania statute made no provision for a
hearing at any time.
By contrast, the Louisiana statute applicable in Orleans Parish
authorizes issuance of a writ of sequestration
"only when the nature of the claim and the amount thereof, if
any, and the grounds relied upon . . . clearly appear from specific
facts shown by the petition verified by, or by the separate
affidavit of, the petitioner, his counsel or agent."
La.Code Civ.Proc.Ann., Art. 3501 (1961). The Louisiana statute
also provides for an immediate hearing, and the writ is dissolved
Page 416 U. S. 627
[creditor] proves the grounds upon which the writ was issued."
The Court's opinion makes these points well, and I need not
elaborate them further. In brief, the Louisiana statute satisfies
the essential prerequisites of procedural due process, and
represents a fairer balancing of the interests of the respective
parties than the statutes in Fuentes.
I therefore agree
that the Louisiana procedure should be sustained against
MR. JUSTICE STEWART reproves the Court for not adhering strictly
to the doctrine of stare decisis. Post
416 U. S.
-636. To be sure, stare decisis
important considerations of consistency and predictability in
judicial decisions, and represents a wise and appropriate policy in
most instances. But that doctrine has never been thought to stand
as an absolute bar to reconsideration of a prior decision,
especially with respect to matters of constitutional
interpretation. [Footnote 2/2
Where the Court errs in its construction of a statute, correction
may always be accomplished by legislative action. Revision of a
constitutional interpretation, on the other hand, is often
impossible as a practical matter, for it requires the cumbersome
route of constitutional amendment. It is thus not only our
prerogative, but also our duty, to reexamine a precedent where its
reasoning or understanding of the Constitution is fairly called
Page 416 U. S. 628
question. And if the precedent or its rationale is of doubtful
validity, then it should not stand. As Mr. Chief Justice Taney
commented more than a century ago, a constitutional decision of
this Court should be
"always open to discussion when it is supposed to have been
founded in error, [so] that [our] judicial authority should
hereafter depend altogether on the force of the reasoning by which
it is supported."
7 How. 283, 48 U. S. 470
Moreover, reconsideration is particularly appropriate in the
present case. To the extent that the Fuentes
established a Procrustean rule of a prior adversary hearing, it
marked a significant departure from past teachings as to the
meaning of due process. [Footnote
] As the Court stated in Cafeteria Workers v.
367 U.S. at 367 U. S. 895
"[t]he very nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable situation."
opinion not only eviscerated that principle,
but also sounded a potential death knell for a panoply of statutes
in the commercial
Page 416 U. S. 629
field. [Footnote 2/4
] This fact
alone justifies a reexamination of its premises. The Court today
reviews these at length, and I join its opinion because I think it
represents a reaffirmation of the traditional meaning of procedural
The Court outlined the deficiencies of the statutes in
"There is [under the Florida statute] no requirement that the
applicant make a convincing showing before the seizure that the
goods are, in fact, 'wrongfully detained.' Rather, Florida law
automatically relies on the bare
assertion of the party
seeking the writ that he is entitled to one, and allows a court
clerk to issue the writ summarily. It requires only that the
applicant file a complaint, initiating a court action for
repossession and reciting in conclusory fashion that he is
'lawfully entitled to the possession' of the property, and that he
file a security bond. . . ."
407 U.S. at 407 U. S. 73
(emphasis added). The Court noted that the Pennsylvania statute
required even less than the Florida statute, since the party
seeking the writ "need not even formally allege that he is lawfully
entitled to the property." Id.
at 407 U. S. 78
All that was required was the filing of an "affidavit of the
value of the property to be replevied.'" Ibid. Moreover,
the Pennsylvania law did "not require that there even be
opportunity for a hearing on the merits of the conflicting claims
to possession of the replevied property." Id. at
407 U. S.
See St. Joseph Stock Yards Co. v. United States,
298 U. S. 38
298 U. S. 93
(1936) (Stone and Cardozo, JJ., concurring in result); Burnet
v. Coronado Oil & Gas Co., 285 U.
, 285 U. S. 405
408 (1932) (Brandeis, J., dissenting). For the view that stare
need not always apply even to questions of statutory
interpretation, see Boys Markets v. Retail Clerks Union,
398 U. S. 235
398 U. S. 255
(1970) (Stewart, J., concurring).
opinion relied primarily on Sniadach v.
Family Finance Corp., 395 U. S. 337
(1969). That case involved a prejudgment garnishment of wages in
which the creditor had no preexisting property interest. It is
readily distinguishable from the instant case, where the creditor
does have a preexisting property interest as a result of the
vendor's lien which attached upon execution of the installment
sales contract. Indeed, depending on the number of installments
which have been paid, the creditor's interest may often be greater
than the debtor's. Thus, we deal here with mutual property
interests, both of which are entitled to be safeguarded.
overlooked this vital point.
In addition, the Court recognized in Sniadach
prejudgment garnishment of wages could, as a practical matter,
"impose tremendous hardship" and "drive a wage-earning family to
the wall." Id.
395 U. S. 340
, 395 U. S.
-342. By contrast, there is no basis for assuming
that sequestration of a debtor's goods would necessarily place him
in such a "brutal need" situation.
For a discussion of the far-reaching implications of the
Clark & Landers,
and Beyond: The Creditor Meets the
Constitution, 59 Va.L.Rev. 335 (1973). The authors suggest that
could require invalidation of many summary
creditor remedies in their present form.
MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL concur, dissenting.
The Louisiana sequestration procedure now before us is
remarkably similar to the statutory provisions at issue in
Fuentes v. Shevin, 407 U. S. 67
(1972). In both cases, the "purchaser in possession" of the
property is not afforded any prior notice of the seizure or any
opportunity to rebut the allegations of the vendor before the
property is summarily taken from him by agents of the State. In
both cases, all that is required to support the issuance of the
writ and seizure of the goods is the filing of a complaint and an
affidavit containing pro forma
allegations in support of
the seller's purported entitlement to the goods in question. Since
the procedure in both cases is completely ex parte,
state official charged with issuing the writ can do little more
than determine the formal sufficiency of the plaintiff's
allegations before ordering the state agents to take the goods from
the defendant's possession. [Footnote
Page 416 U. S. 630
The question before the Court in Fuentes
procedures are required by the Due Process Clause of the Fourteenth
Amendment when a State, at the behest of a private claimant, seizes
goods in the possession of another, pending judicial resolution of
the claimant's assertion of superior right to possess the property.
The Court's analysis of this question began with the proposition
that, except in exceptional circumstances, [Footnote 3/2
] the deprivation of a property interest
encompassed within the Fourteenth Amendment's protection must be
preceded by notice to the affected party and an opportunity to be
heard. The Court then went on to hold that a debtor-vendee's
interest in the continued possession of purchased goods was
"property" within the Fourteenth Amendment's protection, and that
the "temporary, nonfinal deprivation of [this] property [is] . . .
a deprivation' in the terms of the Fourteenth Amendment." 407
U.S. at 407 U. S. 85.
Accordingly, Fuentes held that such a deprivation of
property must be preceded by notice to the possessor and by an
opportunity for a hearing appropriate under the circumstances.
Matters such as
Page 416 U. S. 631
requirements for the posting of bond and the filing of sworn
factual allegations, the length and severity of the deprivation,
the relative simplicity of the issues underlying the creditor's
claim to possession, and the comparative "importance" or
"necessity" of the goods involved were held to be relevant to
determining the form of notice and hearing to be provided, but not
to the constitutional need for notice and an opportunity for a
hearing of some kind.
The deprivation of property in this case is identical to that at
issue in Fuentes,
and the Court does not say otherwise.
Thus, under Fuentes,
due process of law permits Louisiana
to effect this deprivation only after notice to the possessor and
opportunity for a hearing. Because I would adhere to the holding of
I dissent from the Court's opinion and judgment
upholding Louisiana's ex parte
which provides that the possessor of the property shall never have
advance notice or a hearing of any kind.
As already noted, the deprivation of property in this case is
identical to that in Fuentes.
But the Court says that this
is a different case for three reasons: (1) the plaintiff who seeks
the seizure of the property must file an affidavit stating
"specific facts" that justify the sequestration; (2) the state
official who issues the writ of sequestration is a judge, instead
of a clerk of the court; and (3) the issues that govern the
plaintiff's right to sequestration are limited to "the existence of
a vendor's lien and the issue of default," and "[t]here is thus far
less danger here that the seizure will be mistaken and a
corresponding decrease in the utility of an adversary hearing,"
at 416 U. S. 618
The Court's opinion in Fuentes,
rejected each of these factors as a ground for a difference in
The first two purported distinctions relate solely to
Page 416 U. S. 632
the procedure by which the creditor-vendor secures the State's
aid in summarily taking goods from the purchaser's possession. But
so long as the Louisiana law routinely permits an ex parte
seizure without notice to the purchaser, these procedural
distinctions make no constitutional difference.
The Louisiana affidavit requirement can be met by any plaintiff
who fills in the blanks on the appropriate form documents and
presents the completed forms to the court. Although the
standardized form in this case called for somewhat more information
than that required by the Florida and Pennsylvania statutes
challenged in Fuentes,
such ex parte
"are hardly a substitute for a prior hearing, for they test no
more than the strength of the applicant's own belief in his rights.
Since his private gain is at stake, the danger is all too great
that his confidence in his cause will be misplaced. Lawyers and
judges are familiar with the phenomenon of a party mistakenly but
firmly convinced that his view of the facts and law will prevail,
and therefore quite willing to risk the costs of litigation."
407 U.S. at 407 U. S.
Similarly, the fact that the official who signs the writ after
the ex parte
application is a judge, instead of a court
clerk, is of no constitutional significance. Outside Orleans
Parish, this same function is performed by the court clerk. There
is nothing to suggest that the nature of this duty was at all
changed when the law was amended to vest it in a judge, rather than
a clerk in this one parish. Indeed, the official comments declare
that this statutory revision was intended to "mak[e] no change in
the law." [Footnote 3/3
the issuing functionary be a judge or a court clerk, he can, in any
event, do no more than ascertain the formal sufficiency of the
plaintiff's allegations, after
Page 416 U. S. 633
which the. issuance of the summary writ becomes a simple
ministerial act. [Footnote 3/4
The third distinction the Court finds between this case and
is equally insubstantial. The Court says the
issues in this case are "particularly suited" to ex parte
determination, in contrast to the issues in Fuentes,
were "inherently subject to factual determination and adversarial
at 416 U. S. 617
416 U. S. 618
There is, however, absolutely no support for this purported
distinction. In this case, the Court states the factual issues as
"the existence of a vendor's lien and the issue of default."
at 416 U. S. 618
The issues upon which replevin depended in Fuentes
different; the creditor-vendor needed only to establish his
security interest and the debtor-vendee's default. As MR. JUSTICE
WHITE acknowledged in his Fuentes
dissent, the essential
issue at any hearing would be whether "there is reasonable basis
for his [the creditor-vendor's] claim of default." 407 U.S. at
407 U. S.
-100. Thus, the Court produces this final attempted
distinction out of whole cloth.
held that the relative complexity of
the issues in dispute is not relevant to determining whether a
prior hearing is required by due process.
"The issues decisive of the ultimate right to continued
possession, of course, may be quite simple. The simplicity of the
issues might be relevant to the formality or scheduling of a prior
hearing. But it certainly cannot undercut the right to a prior
hearing of some kind."
at 407 U. S. 87
18 (citation omitted). Similarly, the probability of success
Page 416 U. S. 634
on the factual issue does not affect the right to prior notice
and an opportunity to be heard.
"The right to be heard doe not depend upon an advance showing
that one will surely prevail at the hearing. To one who protests
against the taking of his property without due process of law, it
is no answer to say that, in his particular case, due process of
law would have led to the same result because he had no adequate
defense upon the merits. It is enough to invoke the procedural
safeguards of the Fourteenth Amendment that a significant property
interest is at stake, whatever the ultimate outcome of a hearing on
the contractual right to continued possession and use of the
at 407 U. S. 87
(internal quotation marks and citation omitted).
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
dissent. In light of all that has been written in
and in this case, it seems pointless to prolong
the debate. Suffice it to say that I would reverse the judgment
before us because the Louisiana sequestration procedure fails to
comport with the requirements of due process of law.
I would add, however, a word of concern. It seems to me that,
unless we respect the constitutional decisions of this Court, we
can hardly expect that others will do so. Cf. Roofing Wholesale
Co. v. Palmer,
108 Ariz. 508, 502 P.2d 1327
(1972). A substantial departure from precedent can only be
justified, I had thought, in the light of experience with the
application of the rule to be abandoned or in the light of an
altered historic environment. [Footnote
Page 416 U. S. 635
Yet the Court today has unmistakably overruled a considered
decision of this Court that is barely two years old, without
pointing to any change in either societal perceptions or basic
constitutional understandings that might justify this total
disregard of stare decisis.
The Fuentes decision was in a direct line of recent cases in
this Court that have applied the procedural due process commands of
the Fourteenth Amendment to prohibit governmental action that
deprives a person of a statutory or contractual property interest
with no advance notice or opportunity to be heard. [Footnote 3/6
] In the short time that has elapsed
since the Fuentes
case was decided, many state and federal
courts have followed it in assessing the constitutional validity of
state replevin statutes and other comparable state laws. [Footnote 3/7
] No data have been brought to
our attention to indicate that these decisions, granting to
otherwise defenseless consumers the simple rudiments of due process
of law, have worked any untoward change in the consumer credit
market or in other commercial relationships. The only perceivable
change that has occurred since Fuentes
is in the makeup of
this Court. [Footnote 3/8
Page 416 U. S. 636
A basic change in the law upon a ground no firmer than a change
in our membership invites the popular misconception that this
institution is little different from the two political branches of
the Government. No misconception could do more lasting injury to
this Court and to the system of law which it is our abiding mission
MR. JUSTICE BRENNAN is in agreement that Fuentes v.
Shevin, 407 U. S. 67
(1972), requires reversal of the judgment of the Supreme Court of
The Louisiana Supreme Court held that Fuentes
govern the present case. Essentially, that court held that, because
the Louisiana vendor's privilege is defeated if the vendee
alienates the property over which the vendor has the privilege,
this case falls within the language in Fuentes
"[t]here may be cases in which a creditor could make a showing of
immediate danger that a debtor will destroy or conceal disputed
goods." Fuentes v. Shevin, 407 U. S.
, 407 U. S. 93
(1972). The Court today quite correctly does not embrace this
rationale. In discussing the "'extraordinary situations'" that
might justify the summary seizure of goods, the Fuentes
opinion stressed that these situations "must be truly unusual."
Id. at 407 U. S. 90.
Specifically, it referred to "special situations demanding prompt
action." Id. at 407 U. S. 93. In
effect, the Louisiana Supreme Court held that all vendor-creditors
in the State can be conclusively presumed to be in this "special"
situation, regardless of whether the individual vendor could make a
showing of immediate danger in his particular case. But if the
situation of all such vendors in a State could be conclusively
presumed to meet the "extraordinary," "unusual," and "special"
conditions referred to in Fuentes, the basic
constitutional rule of that case would be wholly obliterated in the
407 U.S. at 407 U. S.
La.Code Civ.Proc.Ann., Art. 281 (1961).
The Louisiana authorities cited by the Court are not to the
contrary. Wright v. Hughes,
254 So. 2d 293 (La. Ct.App.
1971), and Hancock Bank v. Alexander,
256 La. 643,
237 So. 2d
(1970), stand only for the proposition that a writ should
not issue unless the sworn allegations are formally sufficient,
which may mean nothing more than that the proper standardized form
be completely filled in.
See, e.g., North Dakota Board of Pharmacy v. Snyder's Drug
Stores, 414 U. S. 156
(1973); Brown v. Board of Education, 347 U.
See, e.g., Goldberg v. Kelly, 397 U.
(1970); Sniadach v. Family Finance
Corp., 395 U. S. 337
(1969); and Bell v. Burson, 402 U.
See, e.g., Turner v. Colonial Finance Corp.,
202 (CA5 1972); Sena v. Montoya, 346 F. Supp.
(NM 1972); Dorsey v. Community Stores
Corp., 346 F.
(ED Wis.1972); Thorp Credit, Inc. v.
Barr, 200 N.W.2d 535
(Iowa 1972); Inter City Motor Sales v. Common Pleas Judge,
42 Mich.App. 112, 201 N.W.2d 378 (1972); and Montoya v.
84 N.M. 91, 500 P.2d 176
Although MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST were
Members of the Court at the time that Fuentes v. Shevin
was announced, they were not Members of the Court when that case
was argued, and they did not participate in its "consideration or
decision." 407 U.S. at 407 U. S.