Georgia statutes permitting a writ of garnishment to be issued
by an officer authorized to issue an attachment or a court clerk in
pending suits on an affidavit of the plaintiff or his attorney
containing only conclusory allegations, prescribing filing of a
bond as the only method of dissolving the garnishment, which
deprives the defendant of the use of the property in the
garnishee's hands pending the litigation, and making no provision
for an early hearing, violate the Due Process Clause of the
Fourteenth Amendment, Sniadach v. Family Finance Corp.,
395 U. S. 337
Fuentes v. Shevin, 407 U. S. 67
Mitchell v. W. T. Grant Co., 416 U.
, distinguished. That this case involved
garnishment of a corporation's sizable bank account, rather than a
consumer's household necessities, is immaterial, since the
probability of irreparable injury if the garnishment proves
unjustified is sufficiently great to require some procedure to
guard against initial error. Pp. 419 U. S.
231 Ga. 260, 201 S.E.2d
, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which DOUGLAS,
BRENNAN, STEWART, and MARSHALL, JJ., joined. STEWART, J., filed a
concurring statement, post,
p. 419 U. S. 608
POWELL, J., filed an opinion concurring in the judgment,
p. 419 U. S. 609
BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined, and in numbered paragraph 5 of which BURGER, C.J., joined,
p. 419 U. S.
MR. JUSTICE WHITE delivered the opinion of the Court.
Under the statutes of the State of Georgia, plaintiffs in
pending suits are "entitled to the process of garnishment."
Page 419 U. S. 602
Ga.Code Ann. § 46-101. [Footnote
] To employ the process, plaintiff or his attorney must make
an affidavit before
"some officer authorized to issue an attachment, or the clerk of
any court of record in which the said garnishment is being filed or
in which the main case is filed, stating the amount claimed to be
due in such action . . . and that he has reason to apprehend the
loss of the same
Page 419 U. S. 603
or some part thereof unless process of garnishment shall
§ 46-102. To protect defendant against loss or damage in the
event plaintiff fails to recover, that section also requires
plaintiff to file a bond in a sum double the amount sworn to be
due. Section 46-401 permits the defendant to dissolve the
garnishment by filing a bond "conditioned for the payment of any
judgment that shall be rendered on said garnishment." Whether these
provisions satisfy the Due Process Clause of the Fourteenth
Amendment is the issue before us in this case.
On August 20, 1971, respondent filed suit against petitioner in
the Superior Court of Whitfield County,
Page 419 U. S. 604
Ga. alleging an indebtedness due and owing from petitioner for
goods sold and delivered in the amount of $51,279.17.
Simultaneously with the filing of the complaint and prior to its
service on petitioner, respondent filed affidavit and bond for
process of garnishment, naming the First National Bank of Dalton as
garnishee. The affidavit asserted the debt and "reason to apprehend
the loss of said sum or some part thereof unless process of
Garnishment issues." [Footnote
] The clerk of the Superior Court forthwith issued summons of
garnishment to the bank, which was served that day. On August 23,
petitioner filed a bond in the Superior Court conditioned to pay
any final judgment in the main action up to the amount claimed, and
the judge of that court thereupon discharged the bank as garnishee.
On September 15, petitioner filed a motion to dismiss the writ of
garnishment and to discharge its bond, asserting, among other
things, that the statutory garnishment procedure was
unconstitutional in that it violated
"defendant's due process and equal protection rights guaranteed
him by the Constitution of the
Page 419 U. S. 605
United States and the Constitution of the State of Georgia."
App. 11. The motion was heard and overruled on November 29. The
Georgia Supreme Court, [Footnote
] finding that the issue of the constitutionality of the
statutory garnishment procedure was properly before it, sustained
the statute and rejected petitioner's claims that the statute was
invalid for failure to provide notice and hearing in connection
with the issuance of the writ of garnishment. 231 Ga. 260,
201 S.E.2d 321
(1973). [Footnote 4
] We granted
certiorari. 417 U.S. 907 (1974). We reverse.
The Georgia court recognized that Sniadach v. Family Finance
Corp., 395 U. S. 337
(1969), had invalidated a statute permitting the garnishment of
wages without notice and opportunity for hearing, but considered
that case to have done nothing more than to carve out an exception,
in favor of wage earners, "to the general rule of legality of
garnishment statutes." 231 Ga. at 264, 201 S.E.2d at 323. The
garnishment of other assets or properties pending the outcome of
the main action, although the effect was to "impound [them] in
the hands of the garnishee,'" id. at 263, 201 S.E.2d at
323, was apparently thought not to implicate the Due Process
This approach failed to take account of Fuentes v.
Shevin, 407 U. S. 67
(1972), a case decided by this Court
Page 419 U. S. 606
more than a year prior to the Georgia court's decision. There,
the Court held invalid the Florida and Pennsylvania replevin
statutes which permitted a 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 clerk of the court at the behest of the
seller. That the debtor was deprived of only the use and possession
of the property, and perhaps only temporarily, did not put the
seizure beyond scrutiny under the Due Process Clause.
"The Fourteenth Amendment draws no bright lines around
three-day, 10-day, or 50-day deprivations of property. Any
significant taking of property by the State is within the purview
of the Due Process Clause."
at 407 U. S. 86
Although the length or severity of a deprivation of use or
possession would be another factor to weigh in determining the
appropriate form of hearing, it was not deemed to be determinative
of the right to a hearing of some sort. Because the official
seizures had been carried out without notice and without
opportunity for a hearing or other safeguard against mistaken
repossession, they were held to be in violation of the Fourteenth
The Georgia statute is vulnerable for the same reasons. Here, a
bank account, surely a form of property, was impounded and, absent
a bond, put totally beyond use during the pendency of the
litigation on the alleged debt, all by a writ of garnishment issued
by a court clerk without notice or opportunity for an early hearing
and without participation by a judicial officer.
Nor is the statute saved by the more recent decision in
Mitchell v. W. T. Grant Co., 416 U.
(1974). That case upheld the Louisiana
sequestration statute which permitted
Page 419 U. S. 607
the seller-creditor holding a vendor's lien to secure a writ of
sequestration and, having filed a bond, to cause the sheriff to
take possession of the property at issue. The writ, however, was
issuable only by a judge upon the filing of an affidavit going
beyond mere conclusory allegations and clearly setting out the
facts entitling the creditor to sequestration. The Louisiana law
also expressly entitled the debtor to an immediate hearing after
seizure and to dissolution of the writ absent proof by the creditor
of the grounds on which the writ was issued.
The Georgia garnishment statute has none of the saving
characteristics of the Louisiana statute. The writ of garnishment
is issuable on the affidavit of the creditor or his attorney, and
the latter need not have personal knowledge of the facts. §46-103.
The affidavit, like the one filed in this case, need contain only
conclusory allegations. The writ is issuable, as this one was, by
the court clerk, without participation by a judge. Upon service of
the writ, the debtor is deprived of the use of the property in the
hands of the garnishee. Here, a sizable bank account was frozen,
and the only method discernible on the face of the statute to
dissolve the garnishment was to file a bond to protect the
plaintiff creditor. There is no provision for an early hearing at
which the creditor would be required to demonstrate at least
probable cause for the garnishment. Indeed, it would appear that,
without the filing of a bond, the defendant debtor's challenge to
the garnishment will not be entertained, whatever the grounds may
be. [Footnote 5
Page 419 U. S. 608
Respondent also argues that neither Fuentes
is apposite here, because each of those cases
dealt with the application of due process protections to consumers
who are victims of contracts of adhesion and who might be
irreparably damaged by temporary deprivation of household
necessities, whereas this case deals with its application in the
commercial setting to a case involving parties of equal bargaining
power. See also Sniadach v. Family Finance Corp.,
395 U. S. 337
(1969). It is asserted in addition that the double bond posted here
gives assurance to petitioner that it will be made whole in the
event the garnishment turns out to be unjustified. It may be that
consumers deprived of household appliances will more likely suffer
irreparably than corporations deprived of bank accounts, but the
probability of irreparable injury in the latter case is
sufficiently great so that some procedures are necessary to guard
against the risk of initial error. We are no more inclined now than
we have been in the past to distinguish among different kinds of
property in applying the Due Process Clause. Fuentes v.
407 U.S. at 407 U. S.
Enough has been said, we think, to require the reversal of the
judgment of the Georgia Supreme Court. The case is remanded to that
court for further proceedings not inconsistent with this
The relevant provisions of the Georgia Code Annotated are as
"Right to writ; wages exempt until after final judgment"
"In cases where suit shall be pending, or where judgment shall
have been obtained, the plaintiff shall be entitled to the process
of garnishment under the following regulations: Provided, however,
no garnishment shall issue against the daily, weekly or monthly
wages of any person residing in this State until after final
judgment shall have been had against said defendant: Provided,
further, that the wages of a share cropper shall also be exempt
from garnishment until after final judgment shall have been had
against said share cropper: Provided, further, that nothing in this
section shall be construed as abridging the right of garnishment in
attachment before judgment is obtained."
"Affidavit; necessity and contents. Bond"
"The plaintiff, his agent, or attorney at law shall make
affidavit before some officer authorized to issue an attachment, or
the clerk of any court of record in which the said garnishment is
being filed or in which the main case is filed, stating the amount
claimed to be due in such action, or on such judgment, and that he
has reason to apprehend the loss of the same or some part thereof
unless process of garnishment shall issue, and shall give bond,
with good security, in a sum at least equal to double the amount
sworn to be due, payable to the defendant in the suit or judgment,
as the case may be, conditioned to pay said defendant all costs and
damages that he may sustain in consequence of suing out said
garnishment, in the event that the plaintiff shall fail to recover
in the suit, or it shall appear that the amount sworn to be due on
such judgment was not due, or that the property or money sought to
be garnished was not subject to process of garnishment. No person
shall be taken as security on the bond who is an attorney for the
plaintiff or a nonresident unless the nonresident is possessed of
real estate in the county where the garnishment issues of the value
of the amount of such bond."
"Affidavit by agent or attorney"
"When the affidavit shall be made by the agent or attorney at
law of the plaintiff, he may swear according to the best of his
knowledge and belief, and may sign the name of the plaintiff to the
bond, who shall be bound thereby in the same manner as though he
had signed it himself."
"Affidavit and bond by one of firm, etc."
"When the debt for recovery of which garnishment is sought shall
be due to partners or several persons jointly, any one of said
partners or joint creditors may make the affidavit and give bond in
the name of the plaintiff, as prescribed in cases of
"Dissolution of garnishments; bond; judgment on bond"
"When garnishment shall have been issued, the defendant may
dissolve such garnishment upon filing in the clerk's office of the
court, or with the justice of the peace, where suit is pending or
judgment was obtained, a bond with good security, payable to the
plaintiff, conditioned for the payment of any judgment that shall
be rendered on said garnishment. The plaintiff may enter up
judgment upon such bond against the principal and securities, as
judgment may be entered against securities upon appeal, whenever
said plaintiff shall obtain the judgment of the court against the
property or funds against which garnishment shall have been
The affidavit in its entirety was as follows:
"SUPERIOR COURT OF Whitfield
"Personally appeared R. L. Foster, President of Di-Chem,
who on oath says that he is President of Di-Chem,
plaintiff herein and that North Georgia Finishing,
defendant, is indebted to said plaintiff in the sum of
$51,279.17 DOLLARS, principal, $___, interest, $___ attorney's
fees, and $___ cost and that said plaintiff has -- a suit pending
-- returnable to the
Superior Court of Whitfield
County, and that affiant has reason to apprehend the loss of said
sum or some part thereof unless process of Garnishment issues."
"Sworn to and subscribed before me, this August
/s/ R. L. Foster, Affiant.
"/s/ Dual Broadrick, Clerk
"Superior Court of Whitfield
App. 3 4.
Appeal was taken in the first instance to the Georgia Supreme
Court. That court, without opinion, transferred the case to the
Georgia Court of Appeals. The latter court issued an opinion, 127
Ga.App. 593, 194 S.E.2d
(1972). The Georgia Supreme Court then issued certiorari,
230 Ga. 623, 198 S.E.2d 284
Subsequent to the Georgia Supreme Court's decision in this case,
a three-judge federal court, sitting in the Northern District of
Georgia declared these same statutory provisions unconstitutional.
Morrow Electric Co. v. Cruse, 370 F.
Petitioner so asserts, relying on Jackson v. Barksdale,
17 Ga.App. 461, 87 S.E. 691 (1916); Powell v. Powell,
Ga.App. 122, 97 S.E.2d 193
(1957). Respondent, without citation of authority states that
"[c]ounsel could have attacked the garnishment in other ways either
in the State or Federal Courts. . . ." Brief for Respondent 5.
MR. JUSTICE STEWART, concurring.
It is gratifying to note that my report of the demise of
Fuentes v. Shevin, 407 U. S. 67
see Mitchell v. W. T. Grant Co., 416 U.
, 416 U. S.
-636 (dissenting opinion), seems to have been greatly
S. Clemens, cable from Europe to the
Associated Press, quoted in 2 A. Paine, Mark Twain: A Biography
Page 419 U. S. 609
MR. JUSTICE POWELL, concurring in the judgment.
I join in the Court's judgment, but I cannot concur in the
opinion, as I think it sweeps more broadly than is necessary and
appears to resuscitate Fuentes v. Shevin, 407 U. S.
(1972). Only last term, in Mitchell v. W. T.
Grant, Co., 416 U. S. 600
(1974), the Court significantly narrowed the precedential scope of
In my concurrence in Mitchell,
"The Court's decision today withdraws significantly from the
full reach of [Fuentes'
] principle, and, to this extent, I
think it fair to say that the Fuentes
416 U.S. at 416 U. S. 623
(POWELL, J., concurring). Three dissenting Justices, including the
author of Fuentes,
went further in their description of
the impact of Mitchell:
"[T]he Court today has unmistakably overruled a considered
decision of this Court that is barely two years old, without
pointing to any change . . . that might justify this total
disregard of stare decisis.
416 U.S. at 416 U. S. 635
(STEWART, J., joined by DOUGLAS and MARSHALL, JJ., dissenting). The
Court's opinion in this case, relying substantially on
suggests that that decision will again be read as
calling into question much of the previously settled law governing
commercial transactions. I continue to doubt whether
strikes a proper balance, especially in cases
where the creditor's interest in the property may be as significant
or even greater than that of the debtor. Nor do I find it necessary
to relegate Mitchell
to its narrow factual setting in
order to determine that the Georgia garnishment statutes fail to
satisfy the requirements of procedural due process.
As we observed in Mitchell,
the traditional view of
procedural due process had been that
Page 419 U. S. 610
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 is adequate.'"
at 416 U. S. 611
quoting Phillips v. Commissioner, 283 U.
, 283 U. S.
-597 (1931). Consistent with this view, the Court in
the past unanimously approved prejudgment attachment liens similar
to those at issue in this case. McKay v. McInnes,
820 (1929); Coffin Bros. v. Bennett, 277 U. S.
(1928); Ownbey v. Morgan, 256 U. S.
(1921). See generally Mitchell, supra,
416 U. S.
-614. But the recent expansion of concepts of
procedural due process requires a more careful assessment of the
nature of the governmental function served by the challenged
procedure and of the costs the procedure exacts of private
interests. See, e.g., Goldberg v. Kelly, 397 U.
, 397 U. S.
-266 (1970); Cafeteria Workers v. McElroy,
367 U. S. 886
367 U. S. 895
(1961). Under this analysis, the Georgia provisions cannot
Garnishment and attachment remedies afford the actual or
potential judgment creditor a means of assuring, under appropriate
circumstances, that the debtor will not remove from the
jurisdiction, encumber, or otherwise dispose of certain assets then
available to satisfy the creditor's claim. [Footnote 2/1
] Garnishment may have a seriously adverse
impact on the debtor, depriving him of the use of his assets during
the period that it applies. But this fact alone does not give rise
to constitutional objection. The State's legitimate interest in
facilitating creditor recovery through the provision of garnishment
remedies has never been seriously questioned.
Page 419 U. S. 611
Pre-garnishment notice and a prior hearing have not been
constitutionally mandated in the past. Despite the ambiguity
engendered by the Court's reliance on Fuentes,
I do not
interpret its opinion today as imposing these requirements for the
future. [Footnote 2/2
restrictions, antithetical to the very purpose of the remedy, would
leave little efficacy to the garnishment and attachment laws of the
In my view, procedural due process would be satisfied where
state law requires that the garnishment be preceded by the
garnishor's provision of adequate security and by his establishment
before a neutral officer [Footnote
] of a factual basis of the need to resort to the remedy as
a means of preventing removal or dissipation of assets required to
satisfy the claim. Due process further requires that the State
afford an opportunity for & prompt post-garnishment judicial
hearing in which the garnishor has
Page 419 U. S. 612
the burden of showing probable cause to believe there is a need
to continue the garnishment for a sufficient period of time to
allow proof and satisfaction of the alleged debt. Since the
garnished assets may bear no relation to the controversy giving
rise to the alleged debt, the State also should provide the debtor
an opportunity to free those assets by posting adequate security in
The Georgia provisions fall short of these requirements.
Garnishment may issue on the basis of a simple and conclusory
affidavit that the garnishor has reason to apprehend the loss of
money allegedly owed. See
Ga.Code Ann. § 46-101, set forth
in full in the Court's opinion, ante
at 419 U. S. 602
n. 1. As shown by the affidavit filed in this case, see
at 419 U. S. 604
n. 2, an unrevealing assertion of apprehension of loss suffices to
invoke the issuance of garnishment. [Footnote 2/4
] This is insufficient to enable a neutral
officer to make even the most superficial preliminary assessment of
the creditor's asserted need. [Footnote
Page 419 U. S. 613
The most compelling deficiency in the Georgia procedure is its
failure to provide a prompt and adequate post-garnishment hearing.
Under Georgia law, garnishment is a separate proceeding between the
garnishor and the garnishee. The debtor is not a party, and can
intervene only by filing a dissolution bond and substituting
himself for the garnishee. Leake v. Tyner,
112 Ga. 919, 38
S.E. 343 (1901); Powell v. Powell,
95 Ga.App. 122,
97 S.E.2d 193
(1957). As noted above, the issuance of the garnishment may impose
serious hardship on the debtor. In this context, due process
precludes imposing the additional burden of conditioning the
debtor's ability to question the validity of its issuance or
continuation on the filing of a bond. Moreover, the Georgia statute
contains no provision enabling the debtor to obtain prompt
dissolution of the garnishment upon a showing of fact, [Footnote 2/6
] nor any indication that the
garnishor bears the burden of proving entitlement to the
I consider the combination of these deficiencies to be fatal to
the Georgia statute. Quite simply, the Georgia
Page 419 U. S. 614
provisions fail to afford fundamental fairness in their
accommodation of the respective interests of creditor and debtor.
For these reasons, I join in the judgment of the Court.
Garnishment and attachment remedies also serve to insure that
the State will retain jurisdiction to adjudicate the underlying
controversy. The advent of the more liberal interpretation of the
States' power to exert jurisdiction over nonresidents who are not
present in the State, International Shoe Co. v.
Washington, 326 U. S. 310
(1945), diminishes the importance of this function.
The Court also cites Sniadach v. Family Finance Corp.,
395 U. S. 337
(1969), which established an exception for garnishment of an
individual's wages. In such cases, the Due Process Clause requires
notice and a hearing prior
to application of the
garnishment remedy. As the opinion itself indicates, however, the
rule is limited to wages, "a specialized type of
property presenting distinct problems in our economic system."
at 395 U. S. 340
Court did not purport to impose requirements of pre-garnishment
notice and hearing in other instances. Ibid.
do not consider Sniadach
to be more than peripherally
relevant to the present case.
I am not in accord with the Court's suggestion that the Due
Process Clause might require that a judicial
the writ of garnishment. The basic protection required for the
debtor is the assurance of a prompt post-garnishment hearing before
a judge. Such a hearing affords an opportunity to rectify any error
in the initial decision to issue the garnishment. When combined
with the availability of the garnishor's bond to compensate for any
harm caused, the possibility of prompt correction of possible error
suffices to satisfy the requirements of procedural due process in
this context. It thus should be sufficient for a clerk or other
officer of the court to issue the original writ upon the filing of
a proper affidavit.
The Georgia courts have not amplified the statutory affidavit
requirement through the process of judicial construction. See
Wilson v. Fulton Metal Bed Mfg. Co.,
88 Ga.App. 884, 886,
, 362 (1953).
Since garnishment can issue in Georgia only in cases in which
suit is pending or judgment has been rendered, see
Ann. § 46-101, the issuing officer need not preliminarily inquire
into the allegation of the existence of a debt. Nor do I
contemplate that the initial showing of probable inability to
collect the debt absent the issuance of the garnishment need be
The facts of this case serve to illustrate the point. From the
record and oral argument, it appears that the respondent feared
that the only accessible and unencumbered assets of North Georgia
Finishing were its bank accounts. At oral argument, counsel for
petitioner indicated that North Georgia Finishing's holdings in
real estate and tangible property in the State of Georgia were
encumbered by mortgages and factoring contracts. It thus appears
that respondent's apprehension of eventual inability to recover the
debt may well have been entirely sufficient to justify the
garnishment for the brief period required to conduct the
Bank accounts are readily susceptible to almost immediate
transfer or dissipation, and this occurrence is often a likelihood
where the debtor is a foreign corporation or a nonresident of the
State. An affidavit in support of the garnishment or attachment of
a nonresident's bank account would normally be sufficient for the
writ if it averred that other less transitory assets were not
available within the State to satisfy any prospective judgment.
Petitioner asserts, without contradiction by the respondent,
that Georgia law does not authorize the alleged debtor to question
the facts contained in the garnishor's affidavit or to make a
contrary submission of fact indicating that the garnishor's
apprehension of possible loss is misconceived or is insufficient to
warrant the continuation of the writ of garnishment.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins,
The Court once again -- for the third time in less than three
years -- struggles with what it regards as the due process aspects
of a State's old and long-unattacked commercial statutes designed
to afford a way for relief to a creditor against a delinquent
debtor. On this third occasion, the Court, it seems to me, does
little more than make very general and very sparse comparisons of
the present case with Fuentes v. Shevin, 407 U. S.
(1972), on the one hand, and with Mitchell v. W.
T. Grant Co., 416 U. S. 600
(1974), on the other; concludes that this case resembles
more than it does Mitchell;
strikes down the Georgia statutory structure as offensive to due
process. One gains the impression, particularly from the final
paragraph of its opinion, that the Court is endeavoring to say as
little as possible in explaining just why the Supreme Court of
Georgia is being reversed. And, as a result, the corresponding
commercial statutes of all other States, similar to but not exactly
like those of Florida or Pennsylvania or Louisiana or Georgia, are
left in questionable constitutional status, with little or no
applicable standard by which to measure and determine their
validity under the Fourteenth Amendment. This, it seems to me, is
an undesirable state of affairs, and I dissent. I do so for a
number of reasons:
1. Sniadach v. Family Finance Corp., 395 U.
(1969), mentioned in passing by the Court in its
present opinion, ante
at 419 U. S.
-606, was correctly regarded by the Georgia Supreme
Court, 231 Ga. 260, 263-264, 201 S.E.2d
Page 419 U. S. 615
321, 323 (1973), as a case relating to the garnishment of
The opinion in Sniadach
"We deal here with wages -- a specialized type of property
presenting distinct problems in our economic system. We turn then
to the nature of that property and problems of procedural due
395 U.S. at 395 U. S. 340
It goes on to speak of possible "tremendous hardship on wage
earners with families to support," ibid.,
"enormous" leverage of the creditor "on the wage earner,"
at 395 U. S. 341
should be allowed to remain in its natural
environment -- wages -- and not be expanded to arm's-length
relationships between business enterprises of such financial
consequence as North Georgia Finishing and Di-Chem.
2. The Court, ante
at 419 U. S. 606
regards the narrow limitations of Sniadach
as affected by
It also bows to Morrow Electric Co. v.
Cruse, 370 F.
(ND Ga.1974), and the three-judge holding there that
the Georgia statutes before us are unconstitutional. Ante
at 419 U. S. 605
n. 4. Indeed, perhaps Sniadach
for a time was so expanded
(somewhat surprisingly, I am sure, to the Sniadach
by the implications and overtones of Fuentes.
came along and Morrow
was more than
three months pre-Mitchell. Sniadach's
was surely less under Mitchell
than it might have appeared
to be under Fuentes.
3. I would have thought that, whatever Fuentes
stood for in this area of debtor-creditor commercial relationships,
with its 4-3 vote by a bobtailed Court, it was substantially cut
back by Mitchell.
Certainly, MR. JUSTICE STEWART, the
author of Fuentes
and the writer of the dissenting opinion
"The deprivation of property in this case is identical
Page 419 U. S. 616
to that, at issue in Fuentes,
and the Court does not
416 U.S. at 416 U. S.
"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
at 416 U. S.
"Yet the Court today has unmistakably overruled a considered
decision of this Court that is barely two years old. . . . The only
perceivable change that has occurred since the Fuentes
case is in the makeup of this Court."
at 416 U. S. 635
Surely, MR. JUSTICE BRENNAN thought so when he asserted in dissent
that he was "in agreement that Fuentes
. . . requires
reversal" of the Louisiana judgment. Id.
at 416 U. S. 636
And surely, MR. JUSTICE POWELL thought so, substantially, when, in
his concurrence, he observed:
"The Court's decision today withdraws significantly from the
full reach of [the Fuentes
] principle, and to this extent
I think it fair to say that the Fuentes
at 416 U. S.
I accept the views of these dissenting and concurring Justices
at least was severely
limited by Mitchell,
and I cannot regard Fuentes
as of much influence or precedent for the present case.
a constitutional decision, obviously should
not have been brought down and decided by a 4-3 vote when there
were two vacancies on the Court at the time of argument. It
particularly should not have been decided by a 4-3 vote when
Justices filling the vacant seats had qualified and were on hand
and available to participate on reargument. [Footnote 3/1
] Announcing the constitutional
Page 419 U. S. 617
decision, with a four-Justice majority of a seven-Justice
shorthanded Court, did violence to Mr. Chief Justice Marshall's
wise assurance, in Briscoe v. Commonwealth's Bank
8 Pet. 118, 33 U. S. 122
(1834), that the practice of the Court "except in cases of absolute
necessity" is not to decide a constitutional question unless there
is a majority "of the whole court."
The Court encountered the same situation a century ago with
respect to the Legal Tender Cases;
decisional process similarly; and came to regret the error.
Originally, in Hepburn v.
8 Wall. 603 (1870), [Footnote 3/2
] the Court, assertedly by a 5-3 vote,
with one vacancy, held the Legal Tender Act of 1862, 12 Stat. 345,
to be unconstitutional with respect to prior debts. Mr. Justice
Grier, who was in failing health, was noted as concurring. 8 Wall.
at 75 U. S. 626
It was stated that the case "was decided in conference" on November
27, 1869, and the opinion "directed to be read" on January 29,
Mr. Justice Grier, however, had submitted his
resignation to the President in December, 1869, effective February
1, 1870, and it had been accepted on December 15. The Justice last
sat on January 31. 8 Wall. at vii-viii. The opinion and judgment in
actually were rendered on February 7, when Mr.
Justice Grier was no longer on the bench.
A year later, with the two vacancies filled, the Court, by a 5-4
vote, overruled Hepburn
and held the Legal Tender Act
constitutional with respect to all debts. Legal
12 Wall. 457 (1871). The Court
"That case [Hepburn v. Griswold
] was decided by a
divided court, and by a court having a less number of
Page 419 U. S. 618
judges than the law then in existence provided this court shall
have. . . . We have been in the habit of treating cases involving a
consideration of constitutional power differently from those which
concern merely private right [citing Briscoe v. Commonwealth's
Bank of Kentucky
]. We are not accustomed to hear them in the
absence of a full court, if it can be avoided."
at 79 U. S.
-554. The failure in Hepburn
to recall or
adhere to the practice announced by the Marshall Court resulted in
confusion, prompt reversal of position, embarrassment, and
the opinion of Mr. Chief Justice Chase
in dissent. 12 Wall. at 79 U. S. 572
Later, Mr. Justice Burton called attention to this lapse and
heartily endorsed the practice of withholding decision on a
constitutional issue by less than a majority of a full Court, that
is, today, by less than five votes when vacancies exist and are
waiting to be filled or have been filled. Burton, The Legal
A Celebrated Supreme Court Reversal, 42 A.B.A.J.
231 (1956), reprinted as Chapter IX in The Occasional Papers of Mr.
Justice Burton (E. Hudon ed.1969). We allowed his advice, as well
as that of the Marshall Court, to go unheeded when we permitted
to come down with only four supporting votes when
a nine-Justice Court already was available on any reargument. ,
The admonition of the Great Chief Justice, in my view, should
override any natural, and perhaps understandable, eagerness to
decide. Had we bowed to that wisdom when
Page 419 U. S. 619
was before us, and waited a brief time for
reargument before a full Court, whatever its decision might have
been, I venture to suggest that we would not be immersed in
confusion, with Fuentes
one way, Mitchell
another, and now this case decided in a manner that leaves counsel
and the commercial communities in other States uncertain as to
whether their own established and long-accepted statutes pass
constitutional muster with a wavering tribunal off in Washington,
D.C. This Court surely fails in its intended purpose when confusing
results of this kind are forthcoming, and are imposed upon those
who owe and those who lend.
5. Neither do I conclude that, because this is a garnishment
case, rather than a lien or vendor-vendee case, it is automatically
controlled by Sniadach. Sniadach,
as has been
noted, concerned and reeks of wages. North Georgia Finishing is no
wage earner. It is a corporation engaged in business. It was
protected (a) by the fact that the garnishment procedure may be
instituted in Georgia only after the primary suit has been filed or
judgment obtained by the creditor, thus placing on the creditor the
obligation to initiate the proceedings and the burden of proof, and
assuring a full hearing to the debtor; (b) by the respondent's
statutorily required and deposited double bond; and (c) by the
requirement of the respondent's affidavit of apprehension of loss.
It was in a position to dissolve the garnishment by the filing of a
single bond. These are transactions of a day-to-day type in the
commercial world. They are not situations involving contracts of
adhesion or basic unfairness, imbalance, or inequality. See D.
H. Overmyer Co. v. Frick Co., 405 U.
(1972); Swarb v. Lennox, 405 U.
(1972). The clerk-judge distinction, relied on by
the Court, surely is of little significance so long as the court
officer is not an agent of the creditor. The Georgia system, for
me, affords commercial entities all the protection
Page 419 U. S. 620
that is required by the Due Process Clause of the Fourteenth
6. Despite its apparent disclaimer, the Court now has embarked
on a case-by-case analysis (weighted heavily in favor of
and with little hope under Mitchell
the respective state statutes in this area. That road is a long and
unrewarding one, and provides no satisfactory answers to issues of
I would affirm the judgment of the Supreme Court of Georgia.
MR. CHIEF JUSTICE BURGER dissents for the reasons stated in
numbered paragraph 5 of the opinion of MR. JUSTICE BLACKMUN.
was decided June 12, 1972. MR. JUSTICE POWELL
and MR. JUSTICE REHNQUIST had taken their respective seats as
Members of the Court five months before, on January 7. 404 U.S.
had been argued November 9, 1971.
See also Broderick's Executor v.
8 Wall. 639 (1870).
Mr. Chief Justice Hughes described the result in the Legal
as one of "three notable instances [in which] the
Court has suffered severely from self-inflicted wounds." C. Hughes,
The Supreme Court of the United States 50 (1928). The others he
named were the Dred Scott
decision, Scott v.
19 How. 393 (1857), and the Income
Tax Case, Pollock v. Farmers' Loan & Trust Co.,
157 U. S. 429
(1895), on rehearing, 158 U. S. 158