FUENTES v. SHEVIN

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Argument of C. Michael Abbott

Chief Justice Warren E. Burger: We will hear argument next in No. 5039, Fuentes against Shevin and others.

Mr. Abbott you may proceed whenever you are ready.

Mr. Abbott.

Mr. C. Michael Abbott: Mr. Chief Justice and may it please the Court.

And may Your Honor, I would like to reserve five minutes of my time for rebuttal.

The nature of the case before the Court now is a challenge to the Florida prejudgment replevin statute on procedural due process and Fourth Amendments search and seizure grounds.

The issues are two-fold.

Simply stated, whether the Florida prejudgment replevin procedure in which a writ is issued without notice or prior hearing violates the procedural due process and the Fourteenth Amendment and sectioning whether the same procedure insofar that commands the state officer to enter a private ruling by force if necessary violates the search and seizure provisions the Fourth Amendment as applied to the States to the Fourteenth.

The lower court held with one judge dissenting that the Florida prejudgment replevin statutes were constitutional.

The facts of the case can be briefly stated, the appellant Margarita Fuentes separately purchased a stove and a stereo from the appellee Firestone Tire and Rubber Company in 1967 under retained title contracts.

These contracts were then consolidated into one agreement.

Margarita Fuentes has complained to Firestone on a number of occasions about mechanical difficulties with her stove.

Appellee Firestone indicates that those difficulties have been repaired.

Margarita Fuentes alleges that they have not.

For that reason she began withholding payments on her contract on April of 1969.

In May of that year Firestone sent her telegram for repossession.

Four-and-a-half months later, on September 15, they filed an affidavit and a bond pursuant to the Florida statute in replevin to her property.

The execution writ was executed on the same day on September 15 by Deputy Sheriff of Dade County over her protest and a protest of her relatives.

The appellant then filed the instant action in the court below in November, 1969.

The Dade County Small Claims Court on our motion agreed to state that action pursuant to the conclusion of this action and on August 24, a Three-Judge Court below held that neither of the -- that this statutory procedure did not violate either the Fourth or Fourteenth Amendment.

Now with regards to the issue of procedural due process, our position can be stated very simply.

If you look over the breadth of the due process cases that had come before this Court, conceding that it is a flexible concept, nevertheless, one rule has emerged that is that absent special circumstances involving a compelling governmental interest, that no one may be deprived of a significant property interest prior to having a chance to contest the taking.

That is what this Court said in Sniadach and reaffirmed it in Boddie versus Connecticut.

Mr. Justice Brennan said again in Bell versus Burson.

Now if you look at the Florida procedure, usually an affidavit is filed, although it is not now required in the Florida statue but was filed in this case.

It is the usual procedure to file an affidavit in the case.

The claimant is lawfully entitled to the property.

That is the only allegation that you must make.

He files a complaint, a bond in double the value of the property and the clerk issues the writ without any judicial interposition.

Simply a ministerial act, he issues the writ, while notes in a hearing, he gives it to the sheriff, sheriff takes it the home and executes on a property.

Justice Potter Stewart: He files a bond in double the amount of the value of the property?

Mr. C. Michael Abbott: That is correct Your Honor.

Justice Potter Stewart: And he is the one who asserts the value of the property?

Mr. C. Michael Abbott: That is correct.

And there is no examination whether this is true or not.

Now we submit that the Florida procedure displays the same types of constitutional deficiencies that this Court file lacking is Sniadach versus Family Finance Corporation.

There is no evidence indicating the validity or the probability of the claim prior to the part of the taking.

The statute is not nearly drawn to certain circumstances that maybe have extreme interest to the creditor.

There is no need for the credit to allege a particular state interest that is of concern to him, and it is the use of the property here as it was in Sniadach, it is of concern.

It is use of the property itself.

There is a property under the Fourteenth Amendment we are talking about.

I mean in fact the contract between Margarita Fuentes and Firestone Stores is simply this that she said, I will pay you more money than the cash price of these goods over period of time, in order that I might have the goods immediately as exactly what I am paying for, I am paying for the use of those goods.

I agree you to pay you a finance charge so that I may have them now.

And it is the use of the goods that she is entitled to until she defaults.

But here under this procedure there is no need for Firestone to prove that she has in fact default in this procedure.

They come and get it anytime they think they want it back for whatever reason.

Chief Justice Warren E. Burger: What is the bond for and under what circumstances can the purchaser --

Mr. C. Michael Abbott: The bond is under the condition that Firestone should be proven wrong.

She can thereafter reach that bond and collect on it.

Of course, the bond has nothing to establish the validity of the claim.

The bond does nothing to mitigate the deprivation between the taking of the trial.

Unknown Speaker: But does it indicate at all that what Firestone’s claim is that there is a default?

Mr. C. Michael Abbott: No, I do not think so.

I mean there is no indication of the claim itself.

Nobody makes the examination of whether there is or there is not a default.

One can argue that by filing a bond, you cannot deter privilege claims.

That if one has to file bond you will deter those people who do not have a proper claim.

Justice Byron R. White: Did Firestone have to file anything in Court prior to taking the goods that in any way indicated that there was a default?

Mr. C. Michael Abbott: No, all they have to file is something in the case they are lawfully entitled to, not to the extent one brief that as anything default.

I suppose yes, but there is no examination.

Unknown Speaker: What is the condition of the bond though that if Firestone does not prove what?

Mr. C. Michael Abbott: If Firestone then does not prove at the this comes to trial that they are lawfully entitled to it, Mrs. Fuentes raised defenses that show that Firestone is not, then if she can show damages she can reach the bond.

But in the first instance they have to show nothing, all they have to do is file an affidavit that is all pre written and said, I am lawfully entitled to property.

It seems to me that what we have to focus on this case are what are the state interests here that are compelling that require Firestone to need this kind of summary procedure.

Chief Justice Warren E. Burger: Well, is it possible that the perishable nature of the merchandise and fact that it is rather rapidly wasting asset has something to do with that?

Mr. C. Michael Abbott: If they could show that, then I think that might be significant Your Honor.

In fact, it is interesting to note here, that in April when she withheld her first payment they sent her a notice.

In May they sent a telegram saying, we are going to repossess within 24 hours if you do not start paying.

Then they waited for four-and-a-half months before they actually issued the writ.

Chief Justice Warren E. Burger: You are not complaining about that, are you?

Mr. C. Michael Abbott: No, the only point I am trying to make is that if they are actually interested in getting the property because of the deteriorating value, why then did they wait this length of time before going after it.

I think what they really want is they want the money.

By taking the property first, they gained an additional bit of leverage over that period of time to try to coerce her to pay whether she may have all defenses or not, I think that is the point to be made.

It seems to me though that if one looks at the interest that the appellees before, it is compelling this procedure, there is simply no indication that it is necessary for them to do this.

The State of Florida says that it is the protection of property of Florida citizens that is of compelling interest here.

But of course our position would be there emphasizing the rights of one class such as creditors over another class such as debtors.

They also say, well, it is the economic life of the community that is at stake here.

As a matter of fact though there is no evidence at all indicating that there is any relationship between attachment type remedies and the availability of credit.

The California Supreme Court was recently faced with the same issue just last month in Randone versus Appellate Department.

They reject and they said, there is no evidence here that there is any relationship between attachment of property like this and the availability of credit.

And further, we note that there are some prevalent studies that indicate that there is no relationship between these two factors.

So, if in fact Firestone is restricted, what is going to happen?

Well, the only evidence before this Court indicating that there is going to be any damage to Firestone at all, it is an affidavit by Firestone’s own national manager of retail credit in Akron, Ohio.

The lower court re-indicated the counter affidavit by Professor William F. Willauer (ph) of the National Consumer Law Center in Boston.

We did not even submit that to the record on this Court because we do not feel that either of these affidavits gives the Court the kind of hard data on which you could comfortably rely and say yes, in fact, there is gong to be an economic depravation to elect the community here.

But let us go one step further.

Let us assume that replevin is essential to consumer credit.

It seems to me that one can make the argument that to the extent that you give debtors or creditors relatively inexpensive and expeditious remedies such as we have here, to that extent, they just encourage them to over extend.

I mean maybe they are giving credit to people that should not have credit.

Now is that in the interest of the citizens of Florida?

I do not think so.

Our research shows that one out of five people simply default on this thing.

They just never show up once their property is taken, they think it is gone.

I think that is significant one of the every five people.

I suspect that is low over the national average, I suspect it is much higher, and then if you look that studies of Dr. Castlewich (ph) who has mentioned this morning (Inaudible) find you will that nationally that the default rate is much higher but in Florida every one out of five.

So I do not think they can show that even if assume that they are going to be hurt, I do not think they can show that consumer credit itself is related to public interest.

The amici in this case say that, in addition to this, there is a public interest in the conservation of state resources.

Well that may be true.

They are assuming that a pre-hearing procedure is going to take more resources than there is now. There is going to be a trial in this case, there is supposed to be a trial.

So, simply by having the hearing first that is not necessary indicate that you are going to have to spend more state money.

Think only in those few cases where you have a really compelling interest, where you can show for example that the debtors about to take the property of the jurisdiction or he is going probably convey that third person or that is rapidly deteriorating the value.

Those are types of cases where you might want to have some kind of summary procedure.

But even then, you can still do it on probability, you do not just have give it to him and say we believe you, you can say, what is the evidence that you have the right to this property?

What is the compelling situation that you need it now?

Then okay, we will let you take it.

Chief Justice Warren E. Burger: Is it a criminal offense to move this type of property without notice to the legal owner?

Mr. C. Michael Abbott: I suspect it probably is Your Honor, although that relates somewhat to the consuming of property under lien statute of order, which has Firestone has pointed out in the opinion of the Attorney General of that state is no longer valid aside from that particular statute, I am not just sure if there are other statutes indicating it is a misdemeanor to move the property, I just do not know.

Chief Justice Warren E. Burger: Well, the movability of this property -- portability perhaps I should say, does that have some relationship to the right to a summary remedy, is that in large the need for summary proceeding?

Mr. C. Michael Abbott: It seems to me it might.

It seems to me it might if you could show that in fact you had that fear.

Then in fact they thought Margarita Fuentes was one want to move the property.

Chief Justice Warren E. Burger: Well, Do you make that kind of decision on an ad hoc basis or do you make that on basis of the generality?

Mr. C. Michael Abbott: But, if you have evidence to show that there was some reason to make that evidence that you know on the broad basis I think, you know, there will be a point there.

The whole point that we make that there is no evidence indicating that a large number of that is expect, what Firestone says, in their own brief at page 18, they say, in the vast majority of these cases, and that is their language not mine, in the vast majority of this case statute that is voluntarily relinquished the property, give it up freely.

They also point out that default rate in all consumer installment contract of this kind is 1.76%.

Way below the types of defaults that the consumers are having, when they just do not show up.

I mean, we are talking about a very narrow portion of the total consumer contract.

And there is no evident even indicating that small portion.

There is going to be a large number if we are going abscond at the property.

In fact, if they are the ones to abscond, it seems to me he has a lot of opportunity to do so prior to the time of the hearing.

I mean, Firestone just like any other creditor begins to go to this debt collection process once they think there is a default.

You know, they sent Margarita Fuentes a letter, they sent her a telegram and she really wants to get rid of the property it seems to me she is going to do it then and she knows eventually, that they may come and get it, it seems to me.

But, if she had the default she still simply not, if she thinks she has not defaulted, she is simply not going to give it up.

I mean, if it is her property, why should she?

But, there is no evidence over the broad basis to indicate that the Firestone needs this kind of protection that they can not just provide it, and they have not provided it.

Justice Byron R. White: So, you would not be satisfied if Firestone before repossession was required to go before a judicial officer and establish what we might, with a better language call “probable cause”, for reasonable grounds to believe that there has been a default.

Exhibit the contract or the note or whatever it is and an affidavit that there has been a default and you would not be satisfied if a judicial officer will require to sign the writ of replevin?

Mr. C. Michael Abbott: I would not Your Honor because I think what would happen is that it would quickly become a rubber stamp procedure.

Justice Byron R. White: Now you say that there must be cannot be done ex parte in any way?

Mr. C. Michael Abbott: Only in narrow circumstances where they can tell proper with the compelling reason.

But these are sometimes very complex issues.

If you take a look at the brief of National Consumer Law Center, one of the things that is interesting in this case that it is here that the security interest that Firestone had in the stove had expired at the time they got it.

That is to say that in any rational allocation of payments between the stereo and the stove, Mrs. Fuentes had paid off that stove when they came and took it.

And, that is not, not a type of defense that the judge looking at the contract, see.

She has got to have a chance to commend and say you know, I paid for that stove already, Firestone has breached their warranty of repair.

A judge just by himself not makes that kind of determination.

Finally it seems to me, I would like to look briefly at the Fourth Amendment issue.

Under the Florida procedure, the writ commanded the officer, state officer, the Deputy Sheriff in our case, to enter by force if necessary and to make a reasonable exploration of the dwelling in order to find the property.

The problem we have with that is again, what is the compelling state interest that Firestone has in allowing the Deputy Sheriff not only to enter but to enter by force if necessary.

Now, if you look at the balancing test which this Court has done in the past, it seems to me you have to weigh the interest of Firestone against the invasion which that entails, and if we agree with Mr. Justice White said in Camara that you are going to have as much of a disturbance in a civil seizure as you are in criminal procedure.

It seems to me that you have to allege a very substantial state interest before you can go in to that home.

Again, the statute is not nearly drawn, there is no advance notice that they are coming here, I think it appears in with Wyman versus James, resistance with misdemeanor compares to Mr. Wyman where if the welfare is different, wanted to refuse she could.

There is no way to refuse here; the sheriff is going to go in whether you refuse or not.

If you look at the back of this case Margarita Fuentes did everything, one could expect of a private citizen to do.

Short of actually physically obstructing the sheriff, she told him, she stopped him at the door, she called her son-in-law, the son of son-in-law who speaks English which she does not, explained to the Sheriff that he could not take the property.

The sheriff comes back and says I have got to take your property that it is my obligation; only at that point did she let him enter the house.

Unknown Speaker: Would your case be any different if the stereo are not kept at her home but in a little grocery store that she run?

Mr. C. Michael Abbott: I do not think so Your Honor, unless there was some evidence to indicate that she was attempting to conceal it.

If Firestone indicates we do not know where it is, we cannot find and she refuses to indicate that she still has it in order to make her feel secure and then they may have an interest.

But the Court is not this case.

Unknown Speaker: Well, you are giving so much emphasis to the home as such and I wondered if that factor is influential in your case?

Mr. C. Michael Abbott: Simply the fact it is in the home.

But to the extent that the property is located in a public dwelling where they may have a chance to enter anyway, it seems to me that one can make a less concurring claim.

Of course, that is not the statute and the statute does not cover special situations like that.

Unknown Speaker: Now you are assuming that the standard is applicable here, is that a compelling state interest, is this established?

Mr. C. Michael Abbott: It seems to me under the due process cases of this Court, it is established.

Switching back the procedures of due process issue for example, if you look at the cases that were cited, Sniadach, all of those cases dealt with the compelling state interest, you know, Fahey versus Mallonee.

Unknown Speaker: These are definitely facts which are -- and I am asking whether this one comes within the factual range of those cases, they must, in your view I take it.

Mr. C. Michael Abbott: It seems to me it comes within the general principle, yes.

It seems to me as far as they have to show some reason why they need this procedure.

Unknown Speaker: Maybe your opposition would not agree to that?

Mr. C. Michael Abbott: I suspect they will not Your Honor.

Chief Justice Warren E. Burger: If the statute permitted the counterband that is present in one of the other cases we are hearing, would you say that --

Mr. C. Michael Abbott: The statute does have a counterbond Your Honor.

Chief Justice Warren E. Burger: It does?

Mr. C. Michael Abbott: Yes, it does.

Chief Justice Warren E. Burger: Well, then the process can be stop by the complete --

Mr. C. Michael Abbott: As a matter of fact I think, one of the things that is also interesting.

If you look at the record here it appears that in fact what the Sheriff was supposed to do was he was supposed to take this property in hold for three days and give Mrs. Fuentes a chance to post a counterbond.

But in the first place there is no notice to her that she has that opportunity.

I mean, only if she has a lawyer who can tell her within 72 hours that exist would she ever be likely to do it.

We examined 442 cases in fact in County Small Claims Court and we found that nobody ever in that entire year ever posted a counterbond.

Justice Potter Stewart: I did not -- I heard what you just said now, that you would examine well over 400 cases and found nobody did it.

I did not hear what you said a little earlier, was there any notice to the debtor, to the vendor that he has this opportunity of filing a bond?

Mr. C. Michael Abbott: To the debtor?

There is no --

Justice Potter Stewart: To Mrs. Fuentes?

Mr. C. Michael Abbott: No, there is no notice to Mrs. Fuentes that she has the opportunity.

Well, one of the other interesting things is even though the sheriff is supposed to hold her property for three days, it appears from the record below that actually the property went directly to Firestone.

I mean, Firestone accompanied the sheriff in their truck; Firestone took the property not the sheriff.

They took it immediately, but, in way three days --

Justice Potter Stewart: What are the, what were the remedies of Mrs. Fuentes?

One was to file a bond in the same amount that had been filed by Firestone?

Mr. C. Michael Abbott: That is correct, that is correct.

Justice Potter Stewart: And then what would happen?

Mr. C. Michael Abbott: If she had filed the bond and if the sheriff was still holding the property then she has the chance to get it back until the trial.

Of course, one of the other things we found is that --

Justice Potter Stewart: Until the trial -- so far there is no complaint then filed?

Mr. C. Michael Abbott: Yes, there is a complaint in the Florida procedure.

There is none in the Pennsylvania.

Justice Potter Stewart: So where is the complaint (Inaudible).

Mr. C. Michael Abbott: There is a complaint in under the Florida procedure, they do file a complaint.

Justice Potter Stewart: I see.

Mr. C. Michael Abbott: They do not in Pennsylvania.

Justice Potter Stewart: Right.

So a complaint has been filed?

Mr. C. Michael Abbott: That is correct.

Justice Potter Stewart: And it is a complaint, was it a subsequent, is that what you are saying?

Mr. C. Michael Abbott: That is right, that is right.

Justice Potter Stewart: And, that is the condition preceding to the --

Mr. C. Michael Abbott: It is; it is.

Justice Potter Stewart: -- that procedure?

Mr. C. Michael Abbott: The affidavit that they are entitled to it or not, and nobody ever looks to see what the complaint says.

But they do have to file one.

Justice Potter Stewart: And then, there is a copy of the complaint served on Mrs. Fuentes?

Mr. C. Michael Abbott: It is at the time the property is taken.

There is no previous notice.

The same time, the sheriff takes the property, he says here is the affidavit, and here is the complaint.

Justice Potter Stewart: And then, is she filed a bond in an amount equal to that filed by Firestone in this case, by the plaintiff.

Then the sheriff continues to hold the property, does he?

Mr. C. Michael Abbott: Well, he is supposed to.

I do not think he did in this case.

Justice Potter Stewart: What does the law provide?

Mr. C. Michael Abbott: He is supposed to hold the property for three days, give her the chance to file her bond.

But, what we have found is that --

Justice Potter Stewart: File her bond and then how long does she has to make an answer to the complaint?

Mr. C. Michael Abbott: Then she has the normal time to make an answer.

Unknown Speaker: But if she files the bond, she gets the properties of it?

Mr. C. Michael Abbott: Assuming that sheriff has that is correct.

Unknown Speaker: She gets it back?

Mr. C. Michael Abbott: She gets the property back totally --

Unknown Speaker: You told me, it remained in the custody of the sheriff?

Mr. C. Michael Abbott: No, no, no.

I am sorry Your Honor.

The Sheriff is supposed to hold it for three days before he gets it to Firestone.

Now, if she does not file a bond he then gives it to Firestone.

Unknown Speaker: What if she does?

Mr. C. Michael Abbott: If she does file a bond he then gets it back to Margarita Fuentes.

Of course our research shows that nobody ever have filed a bond.

Unknown Speaker: Well, we are talking about the law of Florida.

Mr. C. Michael Abbott: That is right, that there is a provision there.

It is also interesting to know I think though that in order to file this type of a bond, you got to put forward the full amount, full cash value of the property.

And Firestone can file their bond for about 1% of the total of their charges, say $200.00 here.

Mrs. Fuentes, on the forth coming bond is going to have to file the full cash value, $200.00 plus a premium.

If Mrs. Fuentes were a plaintiff, they would make no distinction, she could then file 1% bond, it is not a question of we know, we think Firestone is more reputable than Mrs. Fuentes.

It is just simply a question of are you a plaintiff or are you a defendant, if you are a defendant, you file a full bond, if you are a plaintiff, the bonding companies are willing to, let us say, file 1%.

Unknown Speaker: If she does not file bond, she is still as perfectly as the property delivered to Firestone that she is still perfectly free to file an answer to the question?

Mr. C. Michael Abbott: She is Your Honor, she is.

Unknown Speaker: And if she can get judgment she can judge?

Mr. C. Michael Abbott: That is correct.

Of course in the meantime she is about --

Unknown Speaker: She gets the judgment as she, I guess, gets the property back in order to what happens, so, what else does she gets?

Mr. C. Michael Abbott: If she can show damages, she then gets damages.

I think it would be very difficult --

Unknown Speaker: After the bond filed by Firestone.

Mr. C. Michael Abbott: That is right.

Unknown Speaker: That is the purpose of its filing.

Mr. C. Michael Abbott: That is right.

But assume for example, it is not this case, but assume she is about out of stove that she was using for six weeks prior to trial, how do you show those types of damages?

The types of damages one is liable to be, one is liable to suffer are not the type that you can show in terms of money and that is our point, it is the taking of the property that is a deprivation of itself, it is the significant interest.

Now, we are talking about property worth about $600.00.

She has got the right to hold on that, now they show she defaults that is the contract.

Unknown Speaker: She may file the bond, she must file it within three days --

Mr. C. Michael Abbott: She must file it in three days.

Unknown Speaker: Must file?

Justice Potter Stewart: In order to get the property back.

Mr. C. Michael Abbott: Prior to trial.

Justice Thurgood Marshall: In that hearing can she plead breach of warranty?

Mr. C. Michael Abbott: The Florida Law is a little bit uncertain.

We believe she can.

There are cases which indicate that she cannot.

Justice Thurgood Marshall: Well, let us point this way, she can put the same defenses that as if Firestone has recently sued her?

Mr. C. Michael Abbott: That is right.

That is our position, yes.

Justice Thurgood Marshall: She can.

She is not denying any of the defenses, right?

Mr. C. Michael Abbott: No.

Unknown Speaker: And in Florida, must Firestone proceed to bring that action instituted by the complaint to a conclusion, is it required to do so?

Mr. C. Michael Abbott: I think it is unlike the Pennsylvania procedure where there is no requirement that you file a complaint at all.

Unknown Speaker: So, within Florida they are compelled to bring it to a conclusion?

Mr. C. Michael Abbott: Well, they did not I suppose that if they did not show for the hearing, it would just be just be a moot, but ordinarily, yes.

I mean, in the normal course of events one would normally conclude a complaint.

Unknown Speaker: Not if there is an answer filed?

Mr. C. Michael Abbott: Yes, if there is an answer filed then you are going to have your trial.

Unknown Speaker: There is not one, as the default?

Mr. C. Michael Abbott: On the part of the debtor, correct.

Unknown Speaker: Incidentally, I think, did you say that the debtor is not informed by Firestone at least or by the sheriff’s office that she may get the property back by posting the bond within three days?

Mr. C. Michael Abbott: No, she is not informed.

Unknown Speaker: And she -- so she has to know that she had a motion from some source or because the lawyers so advised to her?

Mr. C. Michael Abbott: That is correct, that is correct Your Honor.

I briefly just like to run over what the lower court held.

I mean, one of the things they said is it seems to them that Firestone, that Mrs. Fuentes may have wage her rights.

It is a little unclear from the opinion but it appears that they are saying that since the contract reads that in the event of default of any payments, since Mrs. Fuentes has admitted that she withheld payments, therefore, that gives Firestone the right to the property.

I think that is an incorrect assertion of Florida Law.

Our whole position during the whole litigation has been that ‘default’ is a technical word.

Default indicates breach of legal obligation.

Now, if Firestone has breached the warranty as she says they have, under the Uniform Commercial Code in Florida, she has a right to suspend her payments; that is her right.

Therefore, she has a right to suspend payments, she cannot be in default.

If the contracts said, in the event of an omission of payment, Firestone is entitled to repossession.

Then they would have a stronger case, but it did not say that, it says in the event of default in payment, there can be no default unless one proves that there is a technical default and that has not been proved here.

Likewise, the court below said that we are here dealing with a peaceable entry into her home.

It seems to me that with due difference to the lower court that is misleading, I think the question has to be asked, are we dealing with an entry that is coerced?

And did Mrs. Fuentes say, Sheriff come on in and take my property, it is alright, or did she stop them at the door and say you cannot have it.

What happened --

Unknown Speaker: A prior consent (Inaudible)

Mr. C. Michael Abbott: I think there was no prior consent in the taking?

Unknown Speaker: What does the contract say?

Mr. C. Michael Abbott: The contract says, in the event of default of any payment or payments --

Unknown Speaker: -- the property may be repossessed?

Mr. C. Michael Abbott: That is correct.

Unknown Speaker: Do you say that does not mean that they may repossess it from her home although that is where this kind of property all exist?

Mr. C. Michael Abbott: Not unless they can show some compelling reason that they need to break the sanctity of the home.

Unknown Speaker: I know, but well, I suppose -- you say you cannot send in advance to repossess it from her home?

Mr. C. Michael Abbott: I think maybe she could, I do not think she did --

Unknown Speaker: I thought you said, she did say you may repossess it?

Mr. C. Michael Abbott: In the event of default --

Unknown Speaker: Yes.

Mr. C. Michael Abbott: Of course there had been no default in our opinion.

Unknown Speaker: Well, that is a different point.

You state that even if there has been a default, there is no grounds for entering the home.

Mr. C. Michael Abbott: No, assuming that there --

Unknown Speaker: But your position is --

Mr. C. Michael Abbott: Now assuming there had been a default, it still seems to me that that she ought to have a chance to comply first.

I mean, they give her no notice they are coming.

If they --

Unknown Speaker: But assume the default was what she said in the contract sufficient to give consent then to enter the home?

Mr. C. Michael Abbott: No, I do not believe it is.

It seems to me there has got to be --

Unknown Speaker: (Inaudible) Fourth Amendment.

Mr. C. Michael Abbott: She has got to have a knowing waiver.

It seems to me it is their burden to show that she has knowingly waived it.

I think she could knowingly but perhaps under proper circumstances.

I do not think that the contract here indicates that she did or even has the kind of language indicating that we have the right to enter your home.

Chief Justice Warren E. Burger: You do not think that a written waiver is prima facie evidence of a waiver?

Mr. C. Michael Abbott: If the written waiver indicated what Firestone contends it indicates?

I do not think it does; I do not think if you read the contract you glean from it an indication or an inference that Firestone has a right to enter their home.

That is not in there.

If it were then it is to be a more difficult case.

I would like to reserve more of my time for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Schwartz.

Argument of Herbert T. Schwartz

Mr. Herbert T. Schwartz: Mr. Chief Justice and may it please the Court.

I am Herbert Schwartz, the Deputy Attorney General of the State of Florida.

I represent the appellee Robert L. Shevin, the Attorney General of Florida, Mr. George Wright, my co counsel who would be representing appellee Firestone, and he and I will equally divide the argument.

I should first like to address some remarks to the comments of the appellant as to the facts.

There is a stipulated set of facts in the appendix, which indicate that the Deputy Sheriff may or may not have an refused entry.

The appellees and the testimony that was taken at the hearing before the Three-Judge Court indicated that the Deputy Sheriff was admitted to the home peaceably and he did not force his way in at all, nor was this a type of entry that comes under the sheriff appearing in the doorway and the force of law behind them idea as in previous case before this Court.

Indeed, the Deputy Sheriff was in civilian clothes.

Apart from that the facts --

Justice Thurgood Marshall: Was the Deputy Sheriff armed?

Mr. Herbert T. Schwartz: There were no arms on the Deputy Sheriff that were showing.

I do not know whether he had to conceal it.

Justice Thurgood Marshall: Did the record can show that?

Mr. Herbert T. Schwartz: I am not sure Your Honor, I really cannot --

Justice Thurgood Marshall: Although, the record did not say he was the Deputy Sheriff?

Mr. Herbert T. Schwartz: That is correct Your Honor, he did.

Justice Thurgood Marshall: And that meant to anybody with any reasonable sense that he has the whole power of State of Florida behind him?

Mr. Herbert T. Schwartz: I would say yes Your Honor that is a reasonable sense I guess.

The State of Florida is a real party in interest in this case and the State does assert a real value to this statute.

It is more than the State of Florida, merely siding with a credit because in the proper circumstances we would take which ever side were just inequitable in defending our statute.

But we do have a viable interest in keeping creditor and debtor peace between the two.

It is to the interest of the State of Florida that we prevent and provide ways to keep people from resorting to self-help, such as breaking in and seizing the property and perhaps altercation is over.

So the reason for the replevin statute in the State of Florida is simply stated in our brief to take the property and to custodial end to let the two, the debtor and the creditor have it out in Court.

Because I hope the Court has got the distinct impression because it would be true impression that everything that is done in Florida in the replevin statute must be done by a Court.

There is no profanatory doing anything.

There are only officers of the Circuit Court or the Court that has jurisdiction doing the issuing of papers and the hearing, only a judge.

Justice Byron R. White: Well who (Inaudible)?

Mr. Herbert T. Schwartz: An officer of the Court, a clerk does all of this.

Justice Byron R. White: Judge can decide?

Mr. Herbert T. Schwartz: No, not decide, but before a default can be entered or judgment entered on the default.

Justice Byron R. White: Well, I understand that but the writ of replevin was not issued by a judge and the judge never see the need of the basis for this?

Mr. Herbert T. Schwartz: No, Your Honor.

But ultimately the manner is disposed of by Court before anybody gets the property.

And indeed the clerk must be satisfied and in our State, clerks are officers of the Court.

I am not sure how they are in another states, but he must be satisfied that the bond in proper form and that the complaint is in proper form and that the papers are in quite direct order and that is the last thing the ministerial officer the Court has to do with it.

From then on it is before the Court and no disposition of the case can be held without the Court doing something.

I think there is a very real interest in the conservation of judicial time and energy to be held in the statute envisions, and that it would take a great deal of judicial time and energy for a party to come before the Court of competent jurisdiction to get the writ of replevy, especially as Mr. Abbott says in an advisory hearing.

Certainly that would consume even more time than the ex parte type of hearing suggested about the Court in question.

And I think the State of Florida does have a very appropriate interest in preserving the economic viability of the installment credit system.

So, they really, State of Florida sees two major concepts involved here one is, the very basic underlying question that the State posts and that is our right to legislate in this statutory scheme of replevin, a writ is over 700 years old and somehow the appellant would have you believe that the viability and vitality of the writ of replevin somehow ended when the Deputy Sheriff stepped on the front porch of Mrs. Fuentes’ house.

Justice Thurgood Marshall: This is what (Inaudible), it was ex parte, was it not with replevin?

Mr. Herbert T. Schwartz: Yes Your Honor, it was.

Justice Thurgood Marshall: It was strictly ex parte, and then you add it was a writ of a vendor return (ph) or something filed upon, if you want it back.

It was all ex parte, was it not?

Mr. Herbert T. Schwartz: It evolved to that, your Honor, Yes.

Yes, Your Honor, that is correct.

The common law history of the writ is well-known to this Court and it is detailed in our brief that this is a viable common law institution that has been engrafted on our constitutional scheme of law and one that it stood the test of time.

It is not to be abandoned, the State of Florida feel simply because it is old.

Certainly, the older the law the more firmly rooted it is in our jurisprudence.

Justice Byron R. White: Could under Florida Law, Firestone can repossess without getting a writ of replevin at all, just use self help, if it would end up peacefully?

Mr. Herbert T. Schwartz: That would not be satisfactory to the State, Your Honor.

Justice Byron R. White: Well, not to the state, But how about under the Florida statute?

Mr. Herbert T. Schwartz: No, your Honor that would not satisfy the statute.

Justice Byron R. White: A secured creditor cannot, there cannot be wholly private repossessions by a secured creditor in Florida?

Mr. Herbert T. Schwartz: Not under the statute Your Honor.

There cannot be.

I am sure, as sure as I am standing here that automobile lending institutions do it when they find the car in the street, they take it.

I am not saying that we sanction it.

I am sure that goes on we are not involved in any type of case like that, nor would we be.

This is purely and simply our statutory replevin action that we are seeking to defend.

I think there is another fair amount in overriding issue that it is before the Court and that is just how far reaching is the doctrine of Sniadach or Goldberg.

I think the appellant in this case tries to view and characterized this case in a vacuum, separately in a part from its operative facts.

The facts are that Firestone, under our replevin statute and under its contract, had an absolute right to possess the exact same specific property that they then engrafted.

It does not sound ethereal or abstract right of judgment that they are seeking to execute on and therefore garnish Mrs. Sniadach’s wages or stop Mr. Kelly’s welfare payments, those things that are peculiar type of property, those things that are needed for the life blood of a family.

But, the appellant speaks here in conclusionary terms without any real facts to support those conclusions, he is speaking this case is one of abstraction really in regard to Mrs. Fuentes because the factual basis is one that wholly supports the reasonableness and the rationality of the Florida statute.

It was a peaceful repossession she has all the defenses available to her at the time and place when they reasonably can be presented and the appellant here would have this Court engraft on our law exactly what this Court has said it will not do at many times and that is make due process of law of some fix mechanistic principles without regard to the facts under which it is operating in a given case.

And I believe the attack on the Florida statute is a very broad brush treatment of storm and fury that really in a real sense attacks the very system of which Mrs. Fuentes is at beneficiary.

Because the system is orderly, it has a great deal rationality to it.

She, Mrs. Fuentes, upon repossession could have a quick hearing on the merits, she could post the bond, and also if this statute were abused at the hearing and she laid the predicate to establish the abuse of the procedure, she has her civil recourses to misuse of process, the civil actions for harassing predator techniques and tactics.

She could take Firestone in the Court and get damages from them for this harassment and for misuse of process if she could establish that this was indeed the case.

So, the fact that the statute has not been abused, speaks of its rationality.

And, I think also the fact that people know when they buy something on an installment basis that they are obliged to pay for it and they know that if they do not pay for it, it is going to be taken back rather by the seller.

So Mrs. Fuentes is not in a precarious position.

Indeed, the record shows that she had been a credit and installment purchaser of this very same Firestone Store several times before over period of years, she had established a credit rating with them, and that if she really have some defense to raise as to breach of warranty, the place to do it was before the court in a proper manner, in a proper case, and the forum was there for her to use.

Certainly, Mrs. Sniadach’s wages cannot be made analogous to Mrs. Fuentes stereo set.

Mrs. Sniadach’s wages were the life blood of her family, they were that suppose this Court specialized type of property presenting distinct problems in our society, without Mrs. Sniadach’s wages her family could not exist.

Without Mr. Kelly’s welfare payments being cutoff his family could not have existed.

Money represent those things that is a specialized type of property, certainly one cannot say that a stereo set and unused electric range sitting out on the back porch of a home are those specialized type of property.

Unknown Speaker: Well, I presumably I gathered from just reading the stipulation that the reason it was unused in sitting on the back porch was that Firestone -- that it was a defective?

Mr. Herbert T. Schwartz: This is a --

Unknown Speaker: Firestone has breached its warranty, is it not?

There had been controversy between Firestone and Mrs. Fuentes about the stove and as I got it Firestone supplied a new burners and what not?

But it still it did not work.

Is that right?

Mr. Herbert T. Schwartz: That that is correct, Your Honor.

There had been some dispute about the stove.

Firestone said it was fixed but Mrs. Fuentes said it was not. Nevertheless, the operative facts are this was a stove sitting out in the back porch.

She had another one and a stereo set.

That partly can be called the life blood of the family.

As the lower Federal Court said in Pennsylvania this was really the garden variety of personal property in a footnote to the abstract case.

Unknown Speaker: Mr. Schwartz, I supposed it is hard to conceive of it but, suppose this installment purchase instead of being for stereo and a range, had been for car pitches or foods stuff or something, then would we be closer to Sniadach and Kelly?

Mr. Herbert T. Schwartz: This is precisely the point Your Honor you would become very close to those specialized types of property that was the subject matter of Sniadach and Kelly.

In those cases, I would certainly say they might very well be the light blood of the family.

Unknown Speaker: You would have us draw the line of half then between these types of cases.

Mr. Herbert T. Schwartz: Your Honor, the State of Florida says that if you do not, if you do not what this Court would be doing would be deciding replevin cases add in for (Inaudible) as to precise property, which property does come under Sniadach and Kelly and which property does not in a case to case basis.

The operative facts, I think in summary.

The operative facts show that the state’s interest is to get the debtor and the creditor, and at this process, which is set up by the Florida statutes does need those rudimentary standards to fairness and due process that have been so often enunciated by this Court.

And that to change the Florida Statute’s in effect would be to throw a monkey range into the works of an orderly state process and an economic process in which both parties are eminently aware of their rights and duties.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Very well, Mr. Schwartz.

Mr. Wright.

Argument of George W. Wright, Jr.

Mr. George W. Wright, Jr.: Mr. Chief Justice and may it please the Court.

Before proceeding to discuss the appellant’s due process complaints as they relate to this case, I would like to clarify one or two matters that have been here before discussed by counsel for appellant.

He has asserted in argument before the Court that there were complaints about the performance of the stove in question, and has asserted here in all argument that that was the reason for Mrs. Fuentes withholding payment on the installment contract.

When we were requested by the Three-Judge Federal Court below to confer it for the purpose of stipulating to as many facts as we could to ease the burden of that Court in resolving this case, Mr. Abbott, counsel for the plaintiff asserted and it reflected in this stipulation that he made a contention that there was some difficulty with the stove and that his client was not satisfied with the repairs that were made by Firestone.

Because of the fact that such assertion was made by counsel in that stipulation, the Three-Judge Federal Court below set down an evidentiary hearing for the purpose of allowing either or both parties to this cause to adduce before that Court evidence on any matters on which they may not be able to be stipulated.

At that evidentiary hearing despite inquiry by that Court of Mr. Abbott, he declined to adduce any evidence to support his unsupported contentions that the stove was in fact defective or have not been properly repaired.

There is nothing in this record to reflect in one order that the reason for Mrs. Fuentes withholding payment for the stove or for the merchandise purchase was because of a defect or a failure to properly repair.

The next point I would like to mention in respect to a factual statement and that is as to the Fourth Amendment contention.

Counsel for appellate implies and has throughout his brief implied that there may have been some forcible entry in the service of the particular replevin writ here involved.

That is a far cry from the undisputed facts here.

Not only was a peaceable repossession, the Deputy himself was invited in to the Fuentes home.

There is only a dispute as to the time of the invitation of the Deputy into the home but there is no dispute and it is conceded that prior to the actual service of the writ, the Deputy was invited in to the Fuentes home.

There was no objection by Mrs. Fuentes herself; there was a question raised by her daughter-in-law, who happened to be in the home with her about the right of the sheriff to repossess the merchandise.

The sheriff awaited the daughter-in-law’s call to Mrs. Fuentes’ son-in-law who then sought the advice of counsel and the sheriff stood there during this period of time which must have been some 30 minutes or so when all of these was going on and the son-in-law came to the home and advice the sheriff that he had talked with his counsel and that his counsel said he could not take back merchandise unless there was an actual court proceeding pending.

At which point, of course the deputy explained that there was a Court proceeding pending at which point all parties involved retracted and failed to raise any objection to the repossession of the merchandise.

One matter I would also like to clarify --

Justice Byron R. White: Was the complain in replevin --

Mr. George W. Wright, Jr.: There was a complain --

Justice Byron R. White: -- given to her then?

Mr. George W. Wright, Jr.: Yes sir.

And the complain in replevin, Mr. Justice White, is stated the basis of the claim that she had defaulted on the installment contract for the purchase of the stove and it was asserted what her default was in the balance owed upon that obligation as reflected by the contract --

Justice Byron R. White: Was that complaint filed in connection of getting the bond, the replevin bond?

Mr. George W. Wright, Jr.: Yes, the complaint had to be filed under our statute in order for the clerk to issue a writ of replevin.

Justice Byron R. White: Together with an affidavit?

Mr. George W. Wright, Jr.: Our statute no longer as Mr. Abbott pointed out requires an affidavit but in fact one was filed with this complaint.

But our statute does require the filing of a complaint at that is the actual institution of a lawsuit before the clerk is empowered to issue a writ of replevin, and of course the replevin party must file with the clerk a bond in twice the value of the property sought to be repossessed.

Unknown Speaker: What does Mr. Abbott mean by 1 or 2% under your practice?

Mr. George W. Wright, Jr.: I think he has referenced to the fact he filed an affidavit in the court below to the fact that, I think most of the practice or the practice of most bonding companies in Florida require the defendants who post forth coming bonds to actually collateralize the bond by putting up the value of the bond itself as security where they apparently do not require full collateralization of the replevin bond itself.

That is a matter of practice.

Unknown Speaker: The face amount of a bond is the same as indicated?

Mr. George W. Wright, Jr.: Yes, the face amount of the bond is exactly the same.

If there are abuses in the bonding company’s procedures or charges we of course would submit that would be matter for legislative direction and not for a constitutional strike down of this statute on the basis of the Fourth Amendment violation.

I would like to mention the fact that in our brief before this Court we have dealt somewhat with the economic aspects of the secured sales transaction.

Our purpose in doing so is not because I purport to be an expert in the field of economics which is somewhat a complicated field, but to point out I think significantly that the property interest in the collateral sale, collateral which forms subject matter of the installment sale, is vitally different from those involved in wage garnishments which were involved in Sniadach and welfare termination payments which were involved in the Goldberg-Kelly case.

And secondly, because the impact of altering or in fact eliminating some repossession remedies is conceivably so great that it should not be done by constitutional sweeping, constitutional attacks upon a long acquiesced in and honored remedy such as replevin certainly in absence of compelling judicial precedent.

We submit that there is no compelling judicial precedent of this Court that would require a constitutional strike down of this statute on the basis of due process contentions.

The times when this Court has had before, the question and the validity of the remedies or prejudgment attachments generally such as in McKay against McInnes, this Court has approved them and only in Sniadach has the Court disapproved any prejudgment attachment remedy or general attachment remedy and that of course dealt with the question of garnishment. The basis there being of course as Mr. Schwartz has emphasized that involved as the Court stated a specialize type of property wages in which the Court has describe there and in Goldberg as the very means by which to live.

Both in the economic and legal aspects of the secured sales transaction we submit bear consideration in considering the due process contentions asserted here by the appellant.

The respected property rights of course of the secured seller and purchaser are vitality different from those involved in a prejudgment garnishment.

For example, family finance has no contractual interest or legal interest in the wages of Mrs. Sniadach.

It has none certainly until after judgment is entered upon the debt if there be a judgment ever entered upon a debt.

Of course, there is no contractual relationship involved in the Goldberg situation, but in the secured sales transaction there is a contractual relationship involved which gives the creditor, we submit, certainly and equally if not greater property right in the collateral as the debtor, and it is for the protection of the creditor and the debtor that replevin remedies have been approved, have been enacted, and have been followed, and have been acquiesced in for centuries of time.

Justice Potter Stewart: This remedy would be available I suppose if let us assume that the personal property would cost a thousand dollars and after $999.00 have been paid and then it was default on the last dollar, the remedy would be available to the vendor.

Mr. George W. Wright, Jr.: The remedy Mr. Justice Stewart would be legally available on the Florida Statute, yes sir.

Justice Potter Stewart: So you cannot say that in every case there is more property right in the plaintiff than in the defendant?

Mr. George W. Wright, Jr.: No sir, you cannot say that in every conceivable factual situation that that would be the case.

We have adduced in our brief and appendix to our brief, statistics reflecting in so many instances that for -- particularly in automobiles for example that for the greater proportion of the ordinary automobile, the term of the automobile loan that the value of the collateral itself or the resale value of the collateral itself is much less than the balance owed on the debt.

For example, if I recall correctly and if it is reflected in our brief that on a 36-month automobile loan that for the first 22 months, the wholesale or resale value of the automobile is less than the balance due on the 36-month loan debt.

Justice Potter Stewart: Now, there are two reasons for that.

One is the fast appreciation on automobile in the first few months in its life and the other is that for the first few months the buyer is paying mostly interest and almost no principle, is that correct?

Mr. George W. Wright, Jr.: That is correct.

I would assume that if the contract provide the course that interest is being -- payments are being applied first to interest and then the principal which I trust is probably case in most such transaction.

We submit further that the Sniadach situation or Sniadach ruling should not be extended to all types of tangible personal property and to the replevin of the counsel for appellate would here assert.

Indeed, I think that this Court expressly recognized in Sniadach that it was not intended to extend its doctrine to all of prejudgment attachments in general.

The Court stated there that a procedural rule that may suit due process or satisfy due process or attachments in general citing its prior decision in the McKay versus McInnes which upheld on due process claims constitutionality of prejudgment attachments statutes of Maine does not necessarily satisfy procedural due process in every case.

And every case in Sniadach involved of course the specialized type of property that the Court recognized warranted a specific conclusion breached in that decision.

The same holds true in an essence we submit for the Court’s holding in the Goldberg decision.

The new property concept there recognized as embracing those dependent upon the sovereign for their very existence, that is the persons being all welfare and when they are deprived of their welfare payments, they are denied of their very means by which to live, we submit is peculiar to that situation and should not be extended to cover the situation of replevy of all types of tangible personal property.

I think perhaps counsel --

Justice William J. Brennan: What about the Bell and Burson?

Mr. George W. Wright, Jr.: Excuse me?

Justice William J. Brennan: What about Bell and Burson?

Mr. George W. Wright, Jr.: Bell and Burson, if my memory assures me correctly Mr. Justice Brennan involves of course the situation of the driver’s license of the Georgia Minister.

My understanding or reading of the Bell and Burson decision was essentially based on the entitlement concept that this Court recognized in Goldberg that once the government undertakes to give you something even though they are not obliged to give you something then that person has acquired such a property right in that entitlement that he should have an opportunity to be heard.

Of course, in Bell and Burson there was a provision for hearing but not on the question of liability of fault.

But I think that Bell and Burson were closely fits the specialized situation in Goldberg because the Court did observe in Bell and Burson, if my memory serves me correctly, that the driver’s license himself might well constitute the very means by which to live virtually speaking as or analogous to the Goldberg-Kelly situation.

Certainly, we submit that that cannot be applied categorically to all types of tangible personal and it should not be implied to a tangible person be at all.

I think there is one interesting statistics that we have cited in our brief from a publication often cited by the appellants themselves in their brief, entitled “The Poor Pay More”, and it demonstrates that people, while they may not be able to do without wages, can do without things.

The statistics show that insofar as consumer durable goods including such things as washing machines, furniture, carpeting, sawing machines that in families earning a annual income of less than $3,000.00 almost anywhere from 30 to 40% of those families, and this Court’s -- there is a sampling, it is about 300 families sampling.

But, it reflects that of the family sample, the 300 family sample earning $3,000.00 annually or less that who have these particular items the washing machine, the TV, the sawing machines and so forth that they had paid cash for them.

They had waited until they could save enough cash to pay cash for these articles, and I think it demonstrates that whether we are talking about rich or poor that people can do without things were they cannot do without wages or welfare benefits.

I think it is important to mention also that there is a vast distinction and a consideration to be given to the contractual property right that is involved in this particular decision or in this particular case, which is not existence in the decisions of this Court that counsel for appellant rely upon.

I did want to mention to clarify in response to a question asked Mr. Schwartz by of Mr. Justice White, that Florida does have the Uniform Commercial Code and under Provisions of Section 679.9-503 Florida statutes, it has the self-help repossession feature --

Justice Byron R. White: But Firestone has repossessed this without getting replevin bond under the Florida Statute and under the Uniform Commercial Code.

Mr. George W. Wright, Jr.: Yes sir, it could have so long it does not invoke a breach of the peace, but we submit certainly if that is reasonable and valid and we submit of course that it is that it should not be justification for striking down the replevin statute which does provide for of course the intervention of the state to assure a no breach of the peace.

Thank you, sir.

Chief Justice Warren E. Burger: Thank you.

You have two minutes left Mr. Abbott.

Rebuttal of C. Michael Abbott

Mr. C. Michael Abbott: Mr. Chief Justice and may it please the Court.

Briefly with regard to the facts the only point I want to make is that to the extent that the appellee Firestone continues to say that the sheriff was invited in to the home I think it is essentially misleading.

I would also like to note one error --

Chief Justice Warren E. Burger: It is then stipulated there or it is not?

Mr. C. Michael Abbott: No, it is not stipulated Your Honor.

Chief Justice Warren E. Burger: It is not covered by the stipulation?

Mr. C. Michael Abbott: What happened is that Mrs. Fuentes allowed the sheriff to enter after he had made clear his position that he has the obligation to execute the writ.

She did not say you come on in to my home to say that he was actually invited.

I think what happened was he, Mrs. Fuentes acquiesced.

In fact Mr. Leon (ph) acquiesced in speaking for Mrs. Fuentes who does not speak English.

But one thing I did want to note is that both the lower court in our own brief made an error in indicating that Mrs. Delgado called the son-in-law to come to the house because Firestone continues to contend that Mrs. Fuentes herself made no protest.

I think that is not true but in fact --

Chief Justice Warren E. Burger: Do these factual matters really make any difference here on the constitutional issue?

Mr. C. Michael Abbott: I do not think they do.

The Firestone contends that Mrs. Fuentes did not make any objection.

The only point I want to make is that the record on Page 28 would show that actually Mrs. Fuentes who called Mr. Leon and not her daughter-in-law and the lower court in their own brief including lower court were in error on that point.

The only point I want to emphasize is to say as Mr. Wright does that they have more property right than Mrs. Fuentes has or she gets more property right.

The Firestone has I think missed the point.

My whole point has been that what Mrs. Fuentes was paying for is the use of these goods and that is why she pays a higher price in the cash sale price.

In fact, we can show in this case I think, that they did not have any security interest in the stove at all when they took, I do not think that is particularly important I think the situation would be exactly the same if she had made only one payment at the time they came to take it.

That they have security interest in both items.

The point to be made is that she is paying more for this so that she can have their use immediately.

Unknown Speaker: Well, if she continues to pay more for them, she has their use, does she not?

Mr. C. Michael Abbott: That is correct Your Honor.

Unknown Speaker: This only arises when she stop paying.

Mr. C. Michael Abbott: That is right.

But of course Uniform Commercial Code and Florida says that our situation in which she has a right to suspend payment.

That is crux of our thrust, and it seems to me that Firestone ought to establish that she has violated or is someone in default.

I mean, if the Florida gives her a right to suspend payments, is it then fair to give Firestone a right to take their property before they prove they are entitled to it, and that is our thrust.

It seems to me to the extent that the appellee’s rest on the specialized property that they are ignoring the vast history that the due process cases in this Court.

This Court has always looked first to the state interest involved and then if there is a compelling state interest they look to see whether the property is significant.

Here, the very little talk coming from the appellees on the significance of the interest on why they need this procedure, why is it compelling that they have, what interest did they show that they needed or as required that they are going to settle without it.

They just have not shown that and that is the thrust of the past case in this Court, you look first to the State interest.

Unknown Speaker: But do you think -- Do you think this could be true every time that somebody wants to attack the case law or the statutory law of contracts of a particular state saying that it is unconstitutional, but all of a sudden the burden passes to the state to show a compelling state interest for this particular rule of contract law?

Mr. C. Michael Abbott: It seems to me if they are violating the fundamental rule --

Justice Potter Stewart: But that is the question before us.

Mr. C. Michael Abbott: That is right, if you look to the cases -- Mr. Justice Stewart, if you look at the case that have decided is Sniadach, all of those cases have a compelling state interest except for two, Ownbey versus Morgan and McInnes versus McKay about which Mr. Wright speaks.

Now those two cases at least Ownbey is clear involve a non-resident defendant.

So, they needed that kind of prejudgment attachment in order to bring them into Court.

McInnes versus McKay which is the per curiam decision appears to indicate that also there was non-resident defendant there too to extent the Court speaks of the defendant of making a special appearance.

Those are the only two cases cited by the Court in Sniadach in which there is not a compelling state interest in terms of the statute at hand in which a private creditor initiated procedure to only two cases, and both of those cases are distinguishable and that you needed the statute in order to bring that defense in Court.

All the rest of those cases involve compelling state interest.

Chief Justice Warren E. Burger: The time is up now Mr. Abbott.

Mr. C. Michael Abbott: I thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Print this transcript Transcript: 

Argument of David A. Scholl

Chief Justice Warren E. Burger: We will hear arguments is in 5138, Parham against Cortese.

Mr. Scholl, you may proceed whenever you are ready.

Mr. David A. Scholl: Mr. Chief Justice --

Chief Justice Warren E. Burger: We will try to complete tonight, if it is all possible.

Mr. David A. Scholl: Okay.

Thank you.

Mr. Chief Justice and may it please the Court.

In this case, this is another action which is a class action, brought by a group of consumers.

This is similar in effect to the Swarb action which was also class action instituted on behalf of all of the residents of the state which had been subjected to a certain procedure.

For that reason, I would like to refer to the plaintiff, the appellants as the consumers although, I think that is partially a misnomer in this case.

The appellees, I will refer to as the creditors again.

Well, again it is partially a misnomer.

Well, what is in question in this case is the Pennsylvania procedure of replevin with bond.

The Pennsylvania procedure of replevin with bond is similar in many ways to the Florida procedure which was considered in the Fuentes case.

However, there are very important distinctions on Pennsylvania.

As was pointed out in the arguments in Fuentes case, the replevin seizure in Florida is part of a proceeding which has already been commenced which will ultimately determine the rights of the parties to the particular goods which were seized.

That is not the case in the Pennsylvania replevin with bond procedure.

All that a creditor need to file in Pennsylvania to commence the replevin with bond procedure are four things.

One of these things as an entry of appearance, the other is an affidavit of what the value of the goods are, then he is going to go out and have seized.

The third thing is a bond and the bond must be in double the value of the goods that are being seized and the fourth thing is merely a praecipe to that which is directly to the prothonotary, asking or ordering the prothonotary to issue a writ of replevin at bond.

Now, what need to be included in such a praecipe?

Well, really nothing, except that it is just the direction, a form just as a direction to the prothonotary to issue the writ of replevin?

prothonotary as I had mentioned in the Swarb case, this morning is merely a court clerk.

All that the court clerk does is to examine to see whether in fact the four pieces of paper that have to be filed have been filed.

And if they have, he then ministerially issues the writ of replevin with bond to the sheriff and the sheriff is required to go out and forcibly seize the property from the consumer.

Now, this is the distinction in the Pennsylvania procedure, not only from the Florida procedure which was considered in Fuentes but also, even the procedures in New York which was the subject of the Laprease versus Raymours Furniture case and in California which was the subject to the Blair versus Pitchess case.

Both of these cases held that the procedures involved there were unconstitutional.

Another important feature of the Pennsylvania procedure which is probably distinct from Florida because it is not actually the beginning of an on-going process which is going to determine the party’s rights to the goods, is that for all practical purposes when the seizure is made by the sheriff, that is the end of the proceeding.

Usually, nothing further is filed.

Now there are three possible ways in which the consumer can possibly get that property back, and these three only.

The first is he can file the counter-bond within 72 hours of the seizure of the property.

Unknown Speaker: What is he advised?

Mr. David A. Scholl: Well, he is never advised of it.

In fact, in the Pennsylvania rules of civil procedure, there is a form set out.

It is Rule 1354 and it is included in the appendix.

I believe it is included in our appendix, appendix A to our brief, and the form has nothing in it which states that the consumer can file a counter bond to recover the property.

Unknown Speaker: So that this part of the Pennsylvania procedure is apparent first to be identical with that in Florida?

Mr. David A. Scholl: Yes.

I think it is.

Unknown Speaker: 72 hours?

Double the amount.

I believe, bond double the amount of value property and no notice?

Mr. David A. Scholl: That is right!

Unknown Speaker: Is that it?

Mr. David A. Scholl: That is right.

There are two other ways that the consumer could possibly get the property back eventually.

The one is that, he could file a praecipe with the court which would require the creditor to commence an action to finally determine the rights of the goods.

Of course in the intervening time until that complaint is filed and until it comes to a hearing, the consumer is going to be deprived of the goods.

The only other possible way that the consumer could get the goods back would be to commence an actual of replevin with bond themselves and get the goods back from the creditor.

Of course, this is also going to require them to put up the bond.

Unknown Speaker: You said that the prothonotary –- how do you pronounce this?

Mr. David A. Scholl: It is prothonotary.

Unknown Speaker: prothonotary.

Mr. David A. Scholl: So you can refer to him as the clerk.

Unknown Speaker: Right![Laughter]

It is nothing more than less than a clerk of the court?

Mr. David A. Scholl: Exactly.

Unknown Speaker: Well, does that imply that this if filed in a court?

Mr. David A. Scholl: It is filed with the prothonotary with the court clerk and to that extent; it is filed in a court.

Unknown Speaker: In a court, just as anything filed in this Court, is filed with our clerk, is it not?

Mr. David A. Scholl: That is right, Of course --

Unknown Speaker: We do not call him by that title probably because we cannot pronounce it.

Mr. David A. Scholl: [Laughter]Of course, it never goes before a judge, at any point and the replevin with bond procedure of and so well, it may never go to a judge.

In fact, this probably never will.

But certainly not --

Unknown Speaker: (Inaudible)

Mr. David A. Scholl: The only way he possibly could is if the consumer does something, files a praecipe and makes the creditor file a complaint, then that complaint will eventually get –-

Unknown Speaker: Well what happens if the consumer filed this double bond?

Mr. David A. Scholl: Well he --

Unknown Speaker: And get the property back, then what happens?

Mr. David A. Scholl: Well, then the creditor, it is the creditor’s move so to speak.

The creditor is going to have to do something to get --

Unknown Speaker: And what something?

Mr. David A. Scholl: Well, you probably would follow it up by planning an action.

You file a complaint at that point because then, he would have to get the rights to the goods determined before --

Unknown Speaker: That thing would get you before a judge?

Mr. David A. Scholl: Yes, that would get you before a judge.

So if the consumer cannot come up with the counter bond, the creditor is going to have to go before a judge, to get that property.

But I think the problem is with the counter bond proceeding, especially when one considers the appellants in this record, we have two welfare recipients.

We have the Parhams and the Washington.

Mrs. Washington, both of them are welfare recipients.

They are required to come up with the counter bond within 72 hours or they are not going to get the property back.

Unknown Speaker: Yes, I think that they have three alternatives as I understood.

One is to come up with the counter bond within 72 hours.

Mr. David A. Scholl: That is right.

Unknown Speaker: So they can get back to the property.

Mr. David A. Scholl: Then they will get the property back.

Unknown Speaker: There is another occasion for controversy.

And the other was to file a praecipe?

Mr. David A. Scholl: Yes, but the trouble with the praecipe proceeding is that they will not get the property back when they filed the praecipe.

Unknown Speaker: The praecipe compels the plaintiff to file a complaint, is that it?

Mr. David A. Scholl: Right.

If you file a praecipe, then you are back to where Fuentes case is, you are back with where the Florida proceeding.

Unknown Speaker: Where the Florida proceeding begins?

Mr. David A. Scholl: Right.

Exactly.

Unknown Speaker: But I mean, you cannot always do that as of right by filing a praecipe.

Mr. David A. Scholl: That is right.

Unknown Speaker: And without filing any bond.

Mr. David A. Scholl: Yes.

But you have no -- You are not really, not at anytime.

You do have to file the praecipe; I believe it is within 30 days.

Unknown Speaker: Within that period of time.

And then the third alternative is, to yourself.

It is for the defendant himself to file a counter replevin.

Mr. David A. Scholl: Right! That is always permissible.

Unknown Speaker: Yes.

Mr. David A. Scholl: I think it would be in any --

Unknown Speaker: Replevin is sought for personal property where habeas corpus is for human being, is it not?

Mr. David A. Scholl: Well, I never thought of that analogy.[Laughter]

Unknown Speaker: As a matter of speaking?

Mr. David A. Scholl: Perhaps it is.

Now, I think, we have already had some discussion on Due Process and I think that the Due Process claim here is relatively clear.

This stemmed during the Sniadach case and also hearing the Fuentes, it is that there is a seizure of the property of the consumer without his having had any notice or opportunity to be heard prior to the time at which he deprived of that property.

Essentially, that is the due process claim.

Unknown Speaker: That is not so much that he gets no notice within 72 hours, you can file a counter bond.

Mr. David A. Scholl: Well, he does not get, he did does not get notice.

Unknown Speaker: No, I just want to get it clearly.

You said that your due process claim deals primarily was a fair way to give them any notice or opportunity to be heard, before the property is seized?

Mr. David A. Scholl: That is correct Your Honor.

Unknown Speaker: And not with the fact that he does not get a notice within 72 hours and within which to file a counter bond.

Mr. David A. Scholl: That is correct Your Honor.

Although, I think the fact that he does not get notice of the counter-bond accentuates the fact that the seizure is unlikely to be at temporary seizure.

Unknown Speaker: What happened if Mr. Cortese had --

Mr. David A. Scholl: Well, he is the prothonotary.

Unknown Speaker: I am sorry.

Mr. Parham had -- If I got the right name.

Mr. David A. Scholl: I think so.

Unknown Speaker: If the condition then be -- to file this counter replevin, how long could that process go on?

He files a bond in double the amount of the value of the property and so then the sheriff seizes the property back and the original claimant has 72 hours to hit the ball back in the other court.

How long does that go on?

Mr. David A. Scholl: Well, it could go on, I guess for any length of time.

Justice Thurgood Marshall: I would suggest --

Unknown Speaker: With the merits of the case never determined?

Mr. David A. Scholl: That is right.

I think it is unlikely that it would go on pass the first seizure because Mr. Parham, being a welfare recipient --

Unknown Speaker: Well, let us assume that he has a rich friend.

Mr. David A. Scholl: But presuming that --

Unknown Speaker: Okay, let us play this game and see what happens and what would happen?

Mr. David A. Scholl: You could just keep going indefinitely and --

Unknown Speaker: With never any resolution of the merits of the controversy.

Mr. David A. Scholl: That is correct Your Honor

Unknown Speaker: How you ever noted that?

Justice Thurgood Marshall: I submit that is not true that what happens then is that the creditor files a legal action and it is tried out in the court.

Mr. David A. Scholl: I think Your Honor is right and in fact, practically what would happen, but I was answering Justice Stewart’s questions to what could possibly happen and it would be possible, if the creditor decided to be stubborn about it.

Try to outlast the consumer --

Unknown Speaker: Well, have you ever heard of that instance ever happen?

Mr. David A. Scholl: I have never heard of that happening.

The Court below, recognized that the case of Sniadach versus Family Finance Corporation, which of course concerned a prejudgment wage garnishment seizure, in Wisconsin, this court held was violative of due process because it deprived the consumer in that case of wages prior to determination of the creditor's rights to it was closely analogous to this case and I think that principally, the best way of presenting this case on appeal is to discuss what the court below said and tried to establish how what the court said, did not have support either more in reason.

Now the court relies heavily on the fact that what was concerned within Sniadach or what this court was concerned within Sniadach was wages.

The Court, in fact, holds that because Sniadach concerned wages, therefore, Sniadach cannot possibly have any direct relevance on this case with the seizure of personal property.

I would submit that there are two rationales by which the reasoning that the Court below suggested can be rebutted.

I think the first arises when one considers that what is challenged here is a procedure by which certain property is taken.

The taking of the property of course is an instance of the procedure but it is the taking of the property before there is any determination of the party getting it has any right to it, that is really in question and should it make any difference at all.

Whether it is wages or whether it is personal property or whatever it is.

It is being seized prior to their being any notice and opportunity to be heard.

I think that this court’s decisions in Kelly versus Goldberg which of course concerned welfare benefits and the Bell versus Burson case which has already been discussed suggest that this Court did not intend the language in Sniadach to be delimited or did not intent to delimit its ruling in the Sniadach case solely to wages.

However, I think there is an alternative grounds, on which the court's reasoning can be rebutted and that is that the property seized here, which is the personal property of four persons is equally specialized as the wages that were concerned that the court was concerned within Sniadach.

What we have here, in fact, in the case of the Parham’s, we have a bed, a table and stools which were simply seized.

Now these are things which the Parham’s as welfare recipients simply cannot go out and replace.

It would take many months of saving and even them perhaps, they would not be able to save enough to replace the goods that are seized.

In the case of Mrs. Washington, it is the clothes cabinets that her daughters and her sons’ clothes had been kept in that were seized.

She was forced to simply put the clothes on the floor and just not put them in a cabinet

Unknown Speaker: Well, that is the case; the Washington case does not involve a conditional sale at all.

I think that is an argument between a man and his wife over the custody of one of their children is that right?

Mr. David A. Scholl: Well, that is right Your Honor and I think this points out another flaw in the court’s reasoning.

The court below in its discussion of the seizure constantly points to the fact that there is an extraordinary creditor interest here because the creditor has title and security interest in the property which is seized.

In the case of the Washingtons, we do not even have a debtor-creditor situation.

Unknown Speaker: That is what I thought.

Mr. David A. Scholl: So how can the fact that the title or security interest, and the goods have any really relevance to how replevin in Pennsylvania works.

And the answer is that it does not.

The Pennsylvania replevin procedure actually permits any person to seize anything from anybody.

As long as they can come up with a bond.

For instance, I could probably replevy this chair here, if I had a mind to do it.

I might be liable in some other court for abuse of process eventually, but certainly the replevin statutes would permit me to take it.

Chief Justice Warren E. Burger: Well, there are a lot of statutes which if abused can produce these anomalous results that are not used that way.

Speculation does not get us very far, does it?

Mr. David A. Scholl: Well, I would submit that the Washington case does submit an instance of abuse.

All we have in that case and that is the case before this Court.

Chief Justice Warren E. Burger: We are talking about replevin of a piece of the merchandise now.

Mr. David A. Scholl: Well, the point that I was making of course is that, replevin is not limited to the case of the seizure of merchandise.

That it can be used to seize anything and in fact, one of the parties before the Court was involved in a case that was not a consumer transaction.

It was a case where a father who had just been divorced from his wife, took the child, one of the children and intended to get all the goods that the child was using in his wife’s house.

Interestingly enough, he was a deputy sheriff and he knew about replevin and that is how he effectuated it.

I think though that even if we can assume that -- I think even if we focus on some of the other named plaintiffs in this case, even if we focus upon of the case of Mitchell Epps.

Now he is not an appellant in this case but of course, this case is part of the record below.

We can see how in other instances, we are presented with the fact that the replevin procedure in Pennsylvania is not narrowly drawn in such a way to merely protect creditor interests.

For instance, we might have a different case if we were --

Unknown Speaker: Are all or one of these debtors –- are these parties debtors?

Are they main plaintiffs?

Mr. David A. Scholl: Well, there are originally three main plaintiffs.

Two of them were debtors and the other one was Mrs. Washington, who is not a debtor.

Unknown Speaker: Are the two debtors agreed they were in default?

Mr. David A. Scholl: No.

There was no --

Unknown Speaker: They were not behind in their payments.

Mr. David A. Scholl: Well, there was no agreement as to Mitchell Epps regarding his default.

Perhaps I ought to explain what happened in the Epps case because I think it shows in other instance of how replevin procedure can be abuse or even in the debtor-creditor context.

Mitchell Epps had two separate accounts.

He had a revolving account on which she bought clothes and various other things and then he had some time payment accounts.

Now, what happened is that he fell behind on revolving account and he was paid up to date with the time payment account.

So governing employees’ exchange which was the creditor concern at his particular case filed a writ of replevin and came out and seized all the things that he bought on the time payment accounts.

Now, there is some question as to whether they even had a security interest in those goods on even assuming that somewhere they could produce a contract which showed that there was a security interest and goods purchased in the time payment accounts for violations in the revolving account such a security interest would probably be invalid because we have a case right on point decided in the District Columbia Circuit which indicates that such a security interest is unconscionable.

That is the case of Williams versus Walker Thomas Furniture Company.

So I think that this shows another of the possible of abuses to which the Pennsylvania replevin procedure because it is not narrowly drawn in subject.

That is that the creditor can define what the security interest is and what he thinks the security interest extends to before he goes out and replevins the goods.

Unknown Speaker: Well, apparently Pennsylvania, one of the instances as personal property is that it will be seized by anybody else if he applies the amount of the private property?

Mr. David A. Scholl: Yes, I would say it is.

Unknown Speaker: And do you say that it is unconstitutional, Board of Pennsylvania(Inaudible)

Mr. David A. Scholl: I think that it is.

I think that it represents a violation of Due Process of the citizens of Pennsylvania, for checking any of those citizens who have been subject to the seizure of the property without any notice or opportunity to be heard.

Now, what the Court below constantly speaks of is only the Parham fact situation and the court talks about how default is not denied here.

Well, there is no question that the Parham’s were behind in the payments on their contract but they were making some payments.

In fact, they had made a $25.00 payment in August of 1970 and made a $20.00 payment in the beginning of September 1970 and then a week later, Sears Roebuck, except $20.00 payment came out and replevied the goods.

And by this time they had paid off, I believe approximately $200.00 of the $384.00 debt, that they originally had.

I think that the Parham’s, they had an opportunity to get in the court and raise any defenses that they might have had.

They might have been able to establish that in fact, Sears Roebuck could agree to accept the $20.00 payments a month as a payout schedule.

Because the only reason that Mr. Parham was not able to keep up his original schedule was because he lost his job.

So this is the kind of thing also that the replevin procedure is subject to Mr. Parham, never having an opportunity --

Justice Thurgood Marshall: Do I understand you as where does it note without at all these provisions in it, that it is a good defense to say you cannot afford to pay?

Mr. David A. Scholl: No, what I am suggesting --

Justice Thurgood Marshall: Because you are unemployed?

Is that good defense?

Mr. David A. Scholl: That is not what I meant to suggest Mr. Justice Marshall.

Perhaps, I ought to explain --

Justice Thurgood Marshall: Oh you said he paid the fact that they accepted less than the payment.

Is it something to do with Roebuck, what did that do to Sears Roebuck?

Mr. David A. Scholl: I am saying that it may have this --

Justice Thurgood Marshall: Is it optimism?

Mr. David A. Scholl: It may have represented that they accepted a lesser payment schedule from the Parham’s in light of the fact that they were not --

Justice Thurgood Marshall: Can you give me anything in any law that comes close to that?

If he had paid $25.00 a month and you paid $20.00 that is your excuse from default because the man accepted the $20.00?

Mr. David A. Scholl: I think if the man accepted the $20.00 and does not say anything about it, there is at least an argument that can be made.

Justice Thurgood Marshall: Yes, that he does not notify?

Mr. David A. Scholl: Not that he does not notify but that in fact, the creditor should decease from taking the property as long as the consumer is willing to work out --

Justice Thurgood Marshall: How could you mean, he does not notify?

Mr. David A. Scholl: I do no think that it could possibly be asserted if they did not know the balance.

I did not mean to assert that.

Now, in addition to a claim that the due process rights of the consumers were violated, there is also a claim made by the consumers in this Court and it was also made below that the Fourth Amendment Rights of the consumers were also violated.

Because when an effect is permitted here is an entry into the home of the consumers and a taking of their goods without there being any assertion on the part of the creditor that he has probable cause to enter the home and to seize the particular goods.

Now, the court below gets out of any discussion of the Fourth Amendment in a very easy manner, they simply say that the Fourth Amendment does not apply the civil cases and this is a civil case therefore no Fourth Amendment.

I do not think that that follows the teachings of this Court as to what the nature of the Fourth Amendment is.

The nature of the Fourth Amendment is to protect person’s right to privacy to their home.

It is to prevent seizure or searches of the home and entry into the home by state official in any instance.

Whether the official is executing criminal process or whether as in this case is executing on civil process.

Now, I think that the several cases that point to this result.

First of all, the Camara case, the See case.

Even this Court’s decision in Wiremen versus James, although in that case, it was found that there was no search and no seizure, that case reiterated the holding of the Camara and the See cases that in fact the Fourth Amendment is not limited to cases in which there is a criminal matter that is before the Court and I think other cases that support this notion of the Griswold case which the Fourth Amendment is one of the grounds given for that decision and also the Viven case in which it was permitted at, the plaintiff was permitted to bring an action, civil action, based on the Fourth Amendment.

Positing that the Fourth Amendment does apply the civil cases, I think it is fairly easy to see that in this case, there is no showing of probable cause before a magistrate or any person before the seizure of property is affected.

In fact in Pennsylvania, there is no procedure that ever goes before any neutral arbitrator.

Chief Justice Warren E. Burger: However, the parties undertake the substitute agreements in advance for these processes?

Mr. David A. Scholl: Well, I do not -- neither of the contracts concerning this case really say anything about replevin.

The only thing that the contracts and now this is putting aside the Washington case which of course is not a consumer case and shows out the Fourth Amendment invasion on Mrs. Washington, I do not think that is it all relevant too, but even assuming that Mrs. Washington is out of the case for a minute, then we have just the consumers.

We have an agreement that says that the creditor shall retain title to the instruments and the one contract says, they may repossess goods, the other says, they may retake goods.

Well, title in itself as the uniform commercial code points out merely means that the creditor has a security interest in the goods.

So to say they have the security interest then title is probably redundant.

Now, in the --

Justice Thurgood Marshall: (Inaudible) only for limited decisions?

Mr. David A. Scholl: Right! That does -- a point from the contract that I was referring to you, I mean, retake the merchandise again.

It does not say, however, that they may, that is the Epps contract, if I am not mistaken.

That indicates, that does not say that they may replevy the contract of the property and perhaps the reasonable interpretation of the Epps contract is to be interpreted the same way as the Sears, Roebuck contract which merely permits repossession by the creditor and repossession is not replevin.

Justice Thurgood Marshall: Well, you can think that they were just coming in by self-help and take it?

Mr. David A. Scholl: Well, they could attempt to come there by self-help, but the distinction between repossession and replevin is that if Mrs. Washington and Mrs. Parham said to Sears, Roebuck or to Mr. Washington, you cannot enter my house, or I am not going to let you come into repossess the goods, the repossession would have to stop at that point and I think that is the important distinction --

Justice Thurgood Marshall: You think that is a fair interpretation?

Mr. David A. Scholl: I think that it is.

I think that is ambiguous retake.

Justice Thurgood Marshall: It is your interpretation that Mr. Epps could stop them from repossessing?

Mr. David A. Scholl: I think a fair interpretation is that all retake means is repossession.

Justice Thurgood Marshall: It could be repossession.

You agree that they could repossess, but you say it used to be interpreted that agreement that they could repossess it and give them the right to stop the repossession?

Mr. David A. Scholl: Well, that is the definition of repossession. Repossession has to be a feasible taking.

So the minute that Mr. Epps and Mrs. Parham would attempt to stop Sears from retaking the goods, they would have to stop it.

All repossessions of course are non-consensual or repossession can be consensual.

The Parham’s may have decided, in fact, they could not keep up the payments and they would just as soon have Sears to take it back.

Justice Thurgood Marshall: Well, I assume that (Inaudible)

Mr. David A. Scholl: I think that is all that they reached.

Justice Thurgood Marshall: (Inaudible) that contract, then anytime they may want to repossess that it was really repossess.

I would think that is what the language says.

Mr. David A. Scholl: I would not --

Justice Thurgood Marshall: Without (Inaudible)

Mr. David A. Scholl: I would not interpret that contract as permitting a forcible seizure merely because the meaning of repossession --

Justice Thurgood Marshall: I did not say it was forcible.

I said I would interpret that contract to say that if at any time if a creditor want to repossess that he has a right to repossess?

Mr. David A. Scholl: I would agree with you, Your Honor, but --

Justice Thurgood Marshall: But how do you have a right if he can stop it?

Mr. David A. Scholl: Well, by definite --

Justice Thurgood Marshall: (Inaudible)

Mr. David A. Scholl: Well, it is --

Justice Thurgood Marshall: I see it as an abstract right.

Mr. David A. Scholl: I do not think that Mr. Parham can be held to any interpretation of repossession, other than what it means in the law or nearly which is a feasible taking and I do not see how Mr. Parham especially, Mr. Parham, of course, is a not the person that drafted the contract could possibly be held to such an interpretation that it would permit replevin.

Also, with respect to the Fourth Amendment of course, the agreement is merely between Sears, Roebuck and Mrs. Parham.

It does not permit the sheriff to come in and take the goods and that is the person who takes the goods in this case.

Chief Justice Warren E. Burger: Excuse me Mr. Scholl, your time is up.

Mr. David A. Scholl: Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Maxwell.

Argument of Robert F. Maxwell

Mr. Robert F. Maxwell: Yes sir.

Mr. Chief Justice and may it please the Court.

I represent solely Sears, Roebuck in this matter, as an appellee, but I do think I should mention one or two things where I feel there has been some misunderstanding.

Much is made of the Washington case and then impropriety of the repossession there that there was no right to immediate possession or title.

There was a hearing held in this case by the Lower Court, where Mr. Washington himself was summoned and so was the plaintiff Mrs. Washington.

Mrs. Washington did not appear nor did her attorneys and the court after hearing testimony of Mr. Washington, vacated the injunction that had previously issue and the order to return the goods, saying on page 29 of the record, “it now appears to the Court that the representations upon which the Temporary Restraining Order, September 8 issue were incorrect, both as to allegations contained in the complaint and representations made by counsel.

Accordingly, we will both vacate the order of September 18.”

Thus, there is a finding in the Lower Court on the merits of this controversy which has never been controverted.

Secondly, I would like to call to the court’s attention that while no complaint is filed in Pennsylvania replevin procedure, the bond itself signed by the person making the replevin and signed by a surety which must be an improved surety by the Court which is decided by the judges themselves, not the prothonotary.

There must be a corporate surety and twice the amount of the goods, but this bond says specifically that if, that the plaintiff claims the right to immediate possession of the goods and that if he does not sustain this in an action, in the action then he is liable to the defendant, the value of the property, all legal costs, fees and damages, sustained by reason of the issuance of the said writ.

Now, I would further call to Your Honor’s attention that this procedure is before that the first instance before a prothonotary of the court and his deputy clerks of the common police court.

The fact that a complaint is not filed at the beginning is taking care of in my opinion by this bond where the man finds himself a replevying party and his surety and says he has a right to immediate possession.

But more than that, the rules are replete as is the Original Act of 1705 in Pennsylvania, with immediate actions that the defendant can take to turn away the writ, the effect of the writ.

True, he can file a counter-bond within the 72 hours.

If he does so, then he immediately gets the property back, but as Justice Marshall has indicated, this does not result in a back and forth bond.

It requires as the rule says that all actions of this nature shall follow the rules of assumption in Pennsylvania.

There are must be a filing of the complaint immediately upon at this time by the plaintiff.

There is a right to answer and then it comes before the court either, on a jury trial or by mutual waiver jury trial.

Now second, there is also an immediate right under the rules to move, to adjust the bond, to cancel the bond, to take over the prothonotary to say that they can move the court immediately.

They go immediately to a judge to move that the prothonotary’s action in issuing this bond is improper and to limit the bond, to discharge the bond, etcetera.

So there is really an actual -- let us see, this is one of rules here which are attached and says specifically that the bond can be adjusted and that there can be, it can be thrown out in fact by the court.

Now --

Justice William J. Brennan: This I gather that in the repossession that was taken by the sheriff?

Mr. Robert F. Maxwell: That is right, Yes sir.

In other words --

Justice William J. Brennan: And if the result is a discharge bond then what happens?

Mr. Robert F. Maxwell: Then if the bond were discharged, the goods would immediately revert to the defendant and the court would either enter a final order at that point or would set it down for a future trial.

Justice William J. Brennan: Does adjusting the bond means an adjustment to the amount --

Mr. Robert F. Maxwell: It would be adjusting or they could cancel the bond.

Say the bond has been improvidently issued the rule says.

Now, in addition to this situation, a replevin action is Pennsylvania is never dead until a complaint has been filed, served upon the defendant and judgment entered either by default after 20 days or after hearing before the court and there are provisions in the rules stating that the court has the right to give damages on either side, substantial damages, it can hear the entire case either before a judge or before a jury.

Now, I submit that under these facts, that there has been compliance with constitutional rulings of this court throughout its previous history.

I think it has been indicated in this Court that a party first, taking advantage of a statute cannot be sought -- seen to come in and to attack the constitutionality of the statute.

And this was in the very case of Fay was just Mr. Justice Douglas referred to as an exception in the Sniadach case and the Court specifically said and I think that opinion also was, I know that was by Mr. Justice Jackson said that if you take advantage of a statute, you cannot attack its constitutionality.

Now, these people in gaining these goods, the possession and title of these goods depends on the Commercial Code and the goods in sales act to Pennsylvania.

These forms, the way the form reads, the amount or the title of the type, everything is provided by these laws.

They got possession of these goods by means of compliance with this act, but they say that the punitive effect of this act, the collecting of money for it or replevying the goods, that should be stricken down because it is unconstitutional.

In this action, replevin is merely a procedural remedy to enforce the rights of the creditor given by the Commercial Code, the right to self-help, plus the right to replevy by court action if this is so desired and this is how the plaintiff’s rights in this case arose in this property by this very Commercial Code and certainly, you cannot if they just strike down the replevin action.

It would seem to me, you would have to strike down the security provisions of the uniform commercial code which is effective in 49 states.

The very language precisely here, saying that you can proceed by self-help or in the alternative by an action of replevin and the action of replevin has been proceeded with in this point, in this case.

Now, I think the only other thing that this Court has said over its past history, again in certain exceptions to the Sniadach doctrine that is language that was used in the Sniadach doctrine as indicated that in personal property if there is sufficient availability of immediate or subsequent remedies sufficiently protecting the party against whom a replevin or action has had, where the property is taken from him that this satisfies the due process.

Now, in the specific cases before speaking of the Fourth Amendment, there is certainly I can see no violation of the Fourth Amendment here that was a feasible taking certainly in our case and in all other cases.

And I do not see against -- it was by agreement, the right in the property of this plaintiffs passed through them by virtue of the Uniform Commercial Code, by provisions of the Uniform Commercial Code which is I say is in effect in 49 states and then it is said that because it passed this way, the other part of the Uniform Commercial Code which not only gives rights to these plaintiffs but gives the facts that this part of the code should be stricken down and I think --

Unknown Speaker: (Inaudible)

Mr. Robert F. Maxwell: Pardon?

Unknown Speaker: What is the hold out in state in 49?

Mr. Robert F. Maxwell: I believe sir, as I understand it, that it is Louisiana because of the French law, I believe that is it.

So, I think that is really -- I adjust in this case, really solely move for a dismissal on the ground of this specific case.

In our specific case, we gave a prior notice, four or five prior notices which are part of the record that we were going to repossess, there was default and after that, we finally did repossess and as I say, this replevin action as any other replevin action is still open.

The state courts are open to these people.

In every one of these cases, they could have gone to the state court and a common police judge sitting in city hall and (Inaudible) up, he would have given immediate order if they have rights on which they can depend or which they can, which exist.

Justice Potter Stewart: Mr. Maxwell, in this case as an earlier case today, we have the Attorney General of the State of the Commonwealth of Pennsylvania, instead of seeking and uphold constitutionality of a legislation passed in his commonwealth, respectfully praying that the judgment of the court below be reversed and that this Court entered a judgment deterring the Pennsylvania statute is unconstitutional on their face.

So what is the history of that?

Mr. Robert F. Maxwell: Well sir --

Justice Potter Stewart: We hear at least I hear in federal cases to the tradition that it is the duty of an Attorney General of the State to defend the validity of his state laws?

Mr. Robert F. Maxwell: Your Honor, you probably state the law.

In my position, I have enough problems as attorney for Sears, Roebuck and general counsel for them (Voice Overlap)

Justice Potter Stewart: Well, can you tell as what is the --?

Mr. Robert F. Maxwell: I do not know sir.

Justice Potter Stewart: Was state involved in the --

Mr. Robert F. Maxwell: It did not appear in the Lower Court, Your Honor.

Of course there has been a change.

I think this was measured by Mr. Scholl.

It was a change in administration of the previous Attorney General with Mr. Speaker and it is now Mr. Shane Creamer.

Justice Potter Stewart: And this law has been --

Mr. Robert F. Maxwell: But I do not think it would be right for me to --

Justice Potter Stewart: But this law has been on the books, at least, the core of it, since what, 1705 (Voice Overlap)?

Mr. Robert F. Maxwell: It has been in effect since 1705 ,Your Honor and of course before that I guess it was common law, but it was a law of the colony when the constitution was enacted in independence for Philadelphia.

Chief Justice Warren E. Burger: Thank you, Mr. Maxwell.

Thank you gentlemen.

The case is submitted.