LYNCH v. HOUSEHOLD FINANCE CORP.

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Argument of David M. Lesser

Chief Justice Warren E. Burger: We will hear arguments next in Number 5058, Lynch against Household Finance.

Mr. Lesser you may proceed whenever you are ready.

Mr. David M. Lesser: Thank you Mr. Chief Justice.

Mr. Chief Justice and may it please the Court.

This is an appeal under Title 28, Section 1253, from the judgment of the Three-Judge District Court in the District of Connecticut which denied injunctive and declaratory relief.

The issue is whether the Federal Courts are powerless to award any redress to low income wage earners whose earnings on deposit are summarily garnished by Connecticut Deputy Sheriffs without any notice, hearing, or order of the State Court.

Chief Justice Warren E. Burger: Now in Connecticut, would you clear this up for me, must there be an action pending against to the garnish -- the defendant at the time.

Mr. David M. Lesser: I would like Mr. Chief Justice to begin answering that question and then explain the Connecticut practice of summary prejudgment garnishment in some detail because it is quite unusual.

Chief Justice Warren E. Burger: Yes, you do it on your own way then.

Mr. David M. Lesser: In Connecticut, an alleged creditor and his attorney has absolute discretion prior to instituting suit against the debtor to summarily garnish earnings in his account without any involvement of the court.

The garnishment occurs before process is served upon the debtor.

The attorney for the alleged creditor instructs deputy sheriffs to levy the garnishment by serving a writ of garnishment on the garnishee bank.

Justice William J. Brennan: Then when he get the judgment?

Mr. David M. Lesser: Judgment is obtained perhaps several years after civil action is commenced by service of process on the debtor Mr. Justice Brennan.

Justice William J. Brennan: What -- you garnished as here I gather savings account.

Mr. David M. Lesser: And a checking account, Mr. Justice.

Justice William J. Brennan: And a checking account.

Now then the garnisher has to -- has immediately to file a civil action of it?

Mr. David M. Lesser: He does not immediately need to file.

Justice William J. Brennan: How much time does he have?

Mr. David M. Lesser: Under the applicable statutes, Section 329 of Title 52 and Section 48 (a) of Title 52.

It would be possible for the garnishment to be levied for example on day one for the alleged debtor to be served with process, let us say, on day 45 or 50 and for process to be docketed in the State Court, let us say, on day 55.

Justice William J. Brennan: And you do not get into the State Court until day 55?

Mr. David M. Lesser: One never gets into the State Court on a garnishment Mr. Justice Brennan to raise any questions with respect to that garnishment.

Now --

Justice William J. Brennan: You mean after the proceeding -- even afterward you get into the State Court on day 55?

Mr. David M. Lesser: That is correct Mr. Justice, and I would like to explain that.

Connecticut appears to be the only State in which an alleged creditor and his attorney are permitted in their absolute discretion to levy and maintain a garnishment until final disposition of the creditor suit without any involvement of the State Court.

Most other states require the creditor to get some sort of court approval before garnishment either in the form of posting a bond, filing an affidavit and so far as we know in all other states, the writ of garnishment must be signed or issued by a judge or clerk of court.

None of that obtains here.

Now, once the creditor’s civil suit for damages is docketed, no questions relating to the garnishment can be considered in the context of the creditor’s pending suit.

If the debtor claims that the garnishment was levied without any probable validity, that the creditors claim has no merit or that there was no necessity for a garnishment as in Mrs. Lynch’s and Mrs. Toro’s case for example, where we alleged that there were Connecticut wage earners raising a family in Connecticut, steadily employed, no grounds as in Minnesota for example, where garnishment is permitted only where there maybe some danger that a debtor may escape from the jurisdiction.

They have service of process or fraudulently conceals his assets.

Chief Justice Warren E. Burger: There must be an action pending first against the defendant.

Mr. David M. Lesser: There need not be an action pending first Mr. Chief Justice.

Chief Justice Warren E. Burger: I am speaking -- you were addressing yourself in Minnesota --

Mr. David M. Lesser: Oh, yes, that is correct.

Chief Justice Warren E. Burger: -- which is very common of many other states, is it not?

Mr. David M. Lesser: That is correct Mr. Chief Justice.

In most other states the garnishment is not permitted to be levied unless the court has issued the written and there is a civil action pending.

Justice Potter Stewart: Of course in most other states at least those of which I am familiar, the word, the word ‘garnishment’ means going after somebody’s wages, going after his employer for his wages. Here, what we are talking about is what is generally known in other states as an attachment, is it not?

Mr. David M. Lesser: In Connecticut the term garnishment --

Justice Potter Stewart: Excuse me.

Mr. David M. Lesser: In Connecticut the term garnishment is used Mr. Justice Stewart, as a term permitting a creditor to reach debts owing to a debtor which are in the hands of a third person --

Justice Potter Stewart: But not -- but explicitly not wages as I understand it.

Mr. David M. Lesser: We have a -- we have alleged in these cases that the constitutional deprivations that Mrs. Lynch and Mrs. Toro have suffered is indistinguishable from that suffered by Christine SNIADACH, the only difference --

Justice Potter Stewart: I understand your -- I understand your legal argument, I am asking a question that I --

Mr. David M. Lesser: Wages on the hands of an employer, Mr. Justice, are exempt from garnishment until after judgment, and then it is called an execution.

Justice Potter Stewart: Right.

Mr. David M. Lesser: But wages deposited in accounts --

Justice Potter Stewart: In a bank account?

Mr. David M. Lesser: In a bank account.

And in the Lynch case, I think the parallel of Christine SNIADACH is most clearly appreciative.

Her employer deducted $10.00 of her $69.00 paycheck each week.

Justice Potter Stewart: Deposited in the bank and --

Mr. David M. Lesser: And automatically deposited in a Credit Union Savings Account after place of employment.

Now, once the creditor as I was saying --

Justice Harry A. Blackmun: Do you have any amount exempt in garnishment in Connecticut?

Mr. David M. Lesser: Mr. Justice Blackmun, there is a statute, Section 352 I believe of Title 52, which sets out what the exemptions are.

That is a very old statute and the relevant portions for exemptions are necessary tools of a debtor’s trade and necessary household.

Justice Harry A. Blackmun: But no cash amounts, no monetary amounts?

Mr. David M. Lesser: Only after judgment when wages in the hands of an employer or executed upon, is there any exemption I believe it is either the first $65.00 of the wage earner’s net income is exempt or 25% of his disposable income whichever is greater.

But as to garnishments on wages deposited in accounts there is no exemption.

Now if the creditor, excuse me, if the debtor attempts to raise any issues with respect to the garnishment in the creditor suit, there is no authority of the court to entertain those issues.

And there was no appeal from the denial of relief because Connecticut does not permit interlocutory appeals and such appeals are being to be interlocutory.

There are only two questions in Connecticut which a debtor can raise with any hope of getting either a dissolution or a reduction of the garnishment.

We have discussed those on Pages 14 through 16 of our brief.

A debtor in order to raise these issues must institute separate proceedings pursuant to specific statutes by serving process upon the creditor or his attorney.

Now, he can complain that the garnishment unreasonably exceeds the amount that the creditor himself claims as damages.

But the Court, the State Court has no ability, no power to inquire into the probable validity of the creditor’s claim.

The only inquiry is directed to what the amount of the creditor’s claim is.

In Mrs. Lynch’s case and a suit on a note, it is very clear what the creditor’s claim is, the garnishment does not exceed the amount which the creditor claims as damages.

Therefore, Mrs. Lynch cannot make use of that statute, neither could Mrs. Toro for the same reason before her garnishment was released.

The debtor may also moved to substitute a bond but as --

Justice Harry A. Blackmun: Particularly Mrs. Toro’s particular garnishment has been released?

Mr. David M. Lesser: Mrs. Toro’s particular garnishment has been released Mr. Justice and the District Court stated that this raised some question of mootness which it did not decide but as our prayers for relief demonstrate, Pages 10 of the Appendix in 37 and 38, we were also looking for injunctions against garnishments to be levied by deputy sheriff in the future on behalf of other creditors of Mrs. Lynch and Mrs. Toro.

Now, aside from posting a bond which the wage earners in this appeal are to poor to afford and aside from the reduction of the garnishment for it unreasonably exceeds the amount that the creditor claims, a State Court has no power to release a garnishment.

That is why we are saying that the District Court was in error in these cases.

I think that the procedure in Connecticut highlights that the garnishments in these cases are not proceedings in a State Court.

No Court involvement is necessary from the date of levy until final disposition.

Any questions relating to the garnishment must be raised in a context separate from the creditor’s suit.

The Connecticut --

Justice Harry A. Blackmun: Would your case be any different if your client were General Motors?

Mr. David M. Lesser: I think that this case would be different with respect to the jurisdictional point Mr. Justice Blackmun, if our client were General Motors, not with respect to the 2283 point.

If I may just --

Justice Harry A. Blackmun: It is rather effective to garnish large corporation’s bank accounts once in awhile.

Mr. David M. Lesser: In Connecticut there is a statute, Section 337 (a) of Title 52, which requires a court order for garnishment of checking accounts to the extent if they exceed $5,000.

The grounds upon which in order to an issue are set out on that statute in parallel seriously and very closely, the procedure in a number of other states, the alleged creditor must make some showing that the debtor is about to abscond, avoid service of process, or conceal his property.

But those protections are not available to low income wage earners.

The Three-Judge Court in this case dismissed the complaints on motions to dismiss on two grounds: First, relying on the Second Circuit decision in Eisen against Eastman, the Three-Judge Court held that it lack subject matter jurisdiction under Section 1343, subsection three of Title 28, on the ground that utmost the wage earners had alleged an unconstitutional deprivation, a substantial question of an unconstitutional deprivation of their property valued at less than $10,000.

Its second ground, despite its recognition that summary garnishments are levied without any Court involvement was that Title 28 Section 2283, the anti-injunction statute barred a relief.

Now the rule that we are contending for with respect to the jurisdiction point and we think that this rule follows directly from this Court decisions in Monroe versus Pape ten years ago, is that whenever a natural person alleges a not insubstantial deprivation of his Fourteenth Amendment rights under the color of state law, Sections 1983 and 1343 are satisfied.

Now I say natural person, Mr. Justice Blackmun, I do not think that this case needs to go so far as to hold the General Motors or a corporation has a right of action.

Chief Justice Warren E. Burger: We will suspend for lunch at this time counsel.

You have got about 17 minutes of your time left now.

Mr. David M. Lesser: Thank you Mr. Chief Justice.

Mr. Chief Justice and may it please the Court.

I would like to resume my discussion of the denials of subject matter jurisdiction by the Three-Judge District Court which was the first ground upon which it denied an injunctive relief that our complaints requested.

The rule which we are proposing that this Court hold in this case is that Sections 1983 and 1343 be satisfied by allegations of Fourteenth Amendment deprivations by persons acting in the color of state law.

We believe that this rule is fully supported.

The only reasonable conclusion from the examination of the legislative history and the decisions as discussed in our brief and our reply brief.

We think that a clear enunciation of this rule would have the very great advantage of ending the great confusion which now exists in the different circuits as to the scope of Section 1343.

And that would also end or curtail the needless litigation which has resulted from that confusion.

We discussed the different circuit’s interpretation and how inconsistent they are with one another in Pages 22 through 27 of our brief and then in our replied brief at Page 15, Footnote 13.

As to the second ground upon which the District Court denied injunctive relief and declaratory relief, the ground that Title 28 Section 2283 --

Unknown Speaker: Barred all relief.

Mr. David M. Lesser: We would say that this Court need not adopt a broad rule because the garnishments in these cases are not proceedings pending in the Connecticut Courts.

The Connecticut Supreme Court said more than 50 years ago in the case of Sachs against Nussenbaum which we have cited in our brief and reply brief that the release of a garnishment has no effect upon the pending creditor’s civil suit.

No State Court interests and adjudication would the affected by holding that the garnishments in these cases are not proceedings in a State Court, because they are not under the control of the State Court.

We do not believe that in this case, this Court need reach the question of whether Section 1983 is an expressly authorized exemption to Section 2283, even though we feel that in these cases we have shown through our briefs that the wage earners have no redress in the State Courts.

And I would refer the Court to the case of Michael's Jewelers against Handy cited in our brief in which after the SNIADACH decision a low income debtor challenge the very statute, Title 52 Section 329, under which the garnishments in this cases were levied on the ground that they deprive to have notice and hearing, procedural due process.

Chief Justice Warren E. Burger: Let me see if I can get a little better light on your constitutional argument by hypothetical with reference to the other states.

If a garnishment were permitted by notice or process served on the garnishee and on the defendant after an action has been commenced in the State Court.

Do you think that meets constitutional standard?

Mr. David M. Lesser: Mr. Chief Justice, if garnishments were levied after notice and hearing were given to the debtor, we would say that that would meet constitutional safeguards, but that issue was not before this Court, the reason --

Chief Justice Warren E. Burger: But I am trying to test some of your arguments by that context.

Mr. David M. Lesser: Yes sir.

Chief Justice Warren E. Burger: I noticed, you mean -- I noticed that the notice must allow a period to respond before the garnishment would take effect?

Mr. David M. Lesser: Yes, Mr. Chief Justice.

Chief Justice Warren E. Burger: But then of course they would not usually be any property remaining.

Mr. David M. Lesser: Exactly the same --

Chief Justice Warren E. Burger: Unless the property were impounded print pending, the disposition of the process.

Mr. David M. Lesser: We would be asking for exactly the same protection accorded to Christine SNIADACH.

Several State Courts have held prejudgment attachment and garnishment unconstitutional.

This, the resolution of the constitutional issue, is not before this Court however.

I have raised -- I have explained the practice of prejudgment garnishment in order to give context to our claims that garnishment is not a proceeding in a State Court.

And the severe deprivations that result from excluding Mrs. Lynch and Mrs. Toro from a federal forum.

If this case is remanded then the District Court will reach the constitutional issues and we will be able to litigate them there but the Three-Judge Court itself recognized, although it did not reach the constitutional issue and decided, Mr. Chief Justice, that the wage earners had raised substantial constitutional issues in light of this Court’s decision in the SNIADACH case, but that -- whether the constitutional principal ultimately at issue here would involve an extension of SNIADACH.

It is not before the Court --

Justice William J. Brennan: (Voice Overlap) the only, you say they were in error in denying that they have jurisdiction in this case?

Mr. David M. Lesser: Yes, Mr.--

Justice William J. Brennan: And if we agreed with you on that not we do not reach the merit.

Mr. David M. Lesser: That is right Mr. Justice Brennan.

Also that the Three-Judge Court was in error in holding that Section 2283 barred relief.

And although the opinion of the Three-Judge Court is not entirely clear.

It seems to us that a reading of it will indicate that the Three-Judge Court did not hold summary garnishments to be proceedings in the State Court.

The way we read the opinion Mr. Justice is that the Three-Judge Court felt that enjoin -- that releasing garnishments would probably interfere with the existing creditor’s suit.

This was on motions to dismiss and additionally the Connecticut Supreme Court itself has held in the Sachs case that release does not affect the creditor’s suit.

It is an entirely different matter.

Finally, as to our 2283 point, we do not believe under any circumstances that Section 2283 would bar an injunction against Connecticut deputy sheriffs from filing future summary garnishments in proceedings, existing creditor’s suits.

It is not yet instituted by other creditors of Mrs. Lynch and Mrs. Toro.

In conclusion, the only question before this Court is whether Congress intended Mrs. Lynch’s and Mrs. Toro’s complaints to be heard in a federal forum.

We submit that since they have alleged substantial Fourteenth Amendment violations and that they have no redress in the Courts of Connecticut, there claims must be heard in a Federal Court.

We, therefore, ask this Court to reverse the judgment of the Three-Judge Court below and to remand it for resolution of the merits.

Thank you.

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

Mr. Bell.

Argument of Richard G. Bell

Mr. Richard G. Bell: Mr. Chief Justice and may it please the Court.

I would like to pick up if I may at precisely the point where my Brother Mr. Lesser left off and that is posing the question as to whether Congress intended these claims to have been heard by the Three-Judge District Court below.

The basic holding of the lower court was that it did not have subject matter jurisdiction under the Section 1343 and that was the basis of its dismissal.

Now, the appellees’ position on the 1343 jurisdictional question rests squarely upon the doctrine annunciated in the Eisen case which in turn goes back to the postulation by Mr. Justice Stone in the Hague decision as to the relation between 1343 and 1331.

I would like to review that because that is the basis of our position and the basis of the lower court’s dismissal below.

Now the appellants have a direct argument and an appealing argument as to why this is not so and they say basically that the Fourteenth Amendment was enacted with the purpose in mind to protect precisely the kind of right that is involved in this case.

Further, that Section 1343 and Section 1983, the statute created the cause of action were designed to pick up those constitutional rights and to provide a cause of action and jurisdiction to secure them.

Finally, the appellants say that Section 1331, a $10,000 jurisdictional statute, is to be looked apart -- looked upon as separate and apart from and distinct from the 1343 and 1983 propositions.

Now, if the matter were as clear as this from the legislative history, the wonder is really that Mr. Justice Stone had to go through its process of reasoning in the Hague decision at all.

And the answer must be simply that a selective choice of the legislative history is simply not as clear and not as precise and not as symmetrical as the appellants would have it.

I believe that the reason for this really is that what you overlook in establishing that kind of precise intent to a portion of the civil rights legislation is the nature of the process that went on in Congress for the period following the Civil War.

In Mr. Justice Frankfurter’s words, “This were years of struggle and of compromise.”

And to reduce a portion of the legislative result to clarity and direct us in simplicity overlooks the nature of that struggle and it overlooks the triumphs and the defeats of that compromising process and it overlooks the intensity of the passions that were involved, thus the post Civil War Congress has tried to hammer out in lasting terms what it was that it had torn a country apart for five years during the Civil War.

Now, I think it is instructive to review the period that is in question while this legislative history accumulates.

We begin in 1865 with the Thirteenth Amendment itself which the Court’s emancipation.

In 1866, we have the first of the Civil Rights Act.

That was the act which, among other things, included what is today Section 1983, that statute dealing with equal rights as to ownership and as to disposition of property.

And there is evidence from the history as suggested in our brief that 1983 was the keystone of the reconstruction of Congress’ efforts to preserve that kind of property right.

In 1868 the Fourteenth Amendment himself, in 1870 there is another Civil Rights Act and the Fifteenth Amendment dealing with voting rights comes in to being.

In 1871, there are two Civil Rights Act that came on the books and one of them is so called Ku Klux Klan Act of 1871 from whence the present day 1983 statute creating a cause of action and the 1343 jurisdictional statute draw.

Now, there is evidence in the history that what was a paramount concern of this Ku Klux Klan Act of 1871 was the unequal treatment of people, evidenced by the clan activity in the South from whence the act took its name.

The discrimination on the basis of race, the denial of equal opportunities and the denial of the equal applications of the laws in the years following the Civil War.

Finally, the last stage in this legislative history in 1875 is the first emergence of Section 1331, the jurisdictional statute which now deals in terms of $10,000, but at the time of the original passage I believe it was a $500 statute.

There is pause in 1875 and there is a recodification that takes place in that year and some adjustments were made to the statute that had preceded it.

For instance, I believe it is at that time that the statement in 1983 dealing with a cause of action based on federal laws as well as the Constitution first comes in to being in 1875.

The jurisdictional statute 1343 includes at that time a statement with respect to causes of action based on federal laws denying equal rights and expressed records to the kind of equality concerned that it was at the heart of the Civil Rights legislation.

Now what Mr. Justice Stone’s formulation in Hague case does is set the year 1875 as the point of departure from whence both 1343 and 1331 have existed on the books side by side down to the time of the Hague decision, which was in 1939.

Excuse me, there was one legislative activity during that period but not of tremendous significance, that was in 1911 recodification when the jurisdiction of the Circuit Courts and the District Court became merged in the District Court and 1343, the jurisdictional statute, preserved the phrase that it has today dealing with jurisdiction to causes under those Federal laws providing for equal rights.

Now, what Mr. Justice Stone saw from the history that he looked up in its entirety and as a whole were these two parallel statutes: One providing a cause of action under Section 1343 with no monetary allocations or no monetary requirement whatsoever, and the parallel statute 1331 which did in fact have a monetary requirement which is, as I have said before, has been changed throughout during the course of the year.

Now his analysis led him to believe that 1343, that jurisdictional statute which is at issue in this case, was the one intended to be directed at those causes of actions which were essentially denials of personal rights, and those causes of action based essentially on denial of the equal protection of the law, the discriminatory evils which the reconstruction Congress had noted in the Ku Klux Klan Act and others.

1331 on the other hand, according to Mr. Justice Stone’s formulation, was that statute designed to pick up those actions which were essentially of a property nature capable of being measured in monetary amounts.

Now, in looking back at this history his feel the vision was not entirely uncluttered or unclear because he had the precedents performed in such cases as the Pleasants case, Greenhow and Holt against Indiana which were cases giving some attention to the 1343 question and those cases had started the Court found attack consistent with Mr. Justice Stone’s formulation to the effect that 1343 was a statute dealing with Civil Rights, 1331, the statute dealing with property allegations which were truly property, and did not involve those rights susceptible of being measured in monetary or pecuniary terms.

That is the rationale of Mr. Justice, Hague lies and that is the one if it comes to rest in the Second Circuit case involving Eisen which was Judge Friendly’s opinion some 30 years later, I believe in 1969.

Now, in the Eisen decision, Judge Friendly is candid and frank to know the difficulty with the Hague formulation, because it was 30 years previous and also because there was no majority opinion in the case and that Judge Friendly pointed that out in the course of his opinion.

However, notwithstanding what he termed to be difficulties with it, notwithstanding some self confessed uncertainty as he explained quite expressedly in his opinion.

He found that the formulation had three specific virtues.

He sought as accounting for the prior decisions of this Court that is prior to the term of the Eisen case or those as to where jurisdiction had been granted and those as to where it had not with one exception.

He sought as harmonizing the parallel relation of 1343 and 1331 during their long history stemming from the recodification in 1875.

And finally, he felt convinced in the Eisen opinion that this rationale of Mr. Justice Stone preserved in 1343 the kind of case that was at the heart of the Civil Rights enactment, I believe we call them the Civil War.

That is it preserved.

Those causes of action based on discrimination, based on unequal treatment, based on denial of equal opportunity which could not be merged with money which not lend themselves to any kind of property analysis.

And thus the Eisen decision in the Second Circuit effectively repeats the Stone analysis and gives rise to these -- the separation between 1343 and 1331 on the basis of whether or not the right alleges or assorted is or is not capable of monetary evaluation or whether it is one of those intangible rights of personal liberty which is not so capable and therefore for which no monetary requirement lies within the statute.

Now, it was the application of this analysis.

That is of the Eisen rationale based on Mr. Justice Stone’s rationale that was at the heart of the lower court’s dismissal on the basis of lack of subject matter jurisdiction in this case.

Now, the garnishment process in Connecticut -- and may I just explain that the garnishment process is a kind of attachment and Mr. Justice Stewart raised this question, I believe, the statute itself is entitled one of four in attachment, and garnishment is used not with respect to that statute but the understanding that is part of the overall attachment pattern in the State of Connecticut.

But --

Justice Potter Stewart: In Connecticut as I understand it, one thing that cannot be reached prior to judgment is wages owing from an employer to an employee.

Mr. Richard G. Bell: That is correct Your Honor.

If we look at the attachment statutes as a whole there are several things which is a matter of fact are proscribed, all of them having kind of a common thread of interest which reflects a legislative concern in Connecticut for those kinds of property which come closes to enabling one to exist and enabling one to operate in a free society.

You cannot attach or reach your garnish wages in advance with an action.

You cannot deal with household or personal effects.

You cannot reach the tools of one’s tree.

You cannot reach an automobile without a court order.

There are certain kinds of action wherein attachment of any nature or garnishment or otherwise is prohibited before suit.

There were classes of plaintiffs as to whom the process is denied in advance of suit.

Chief Justice Warren E. Burger: Is there any time limit counsel that the garnishments may remain in effect for following the merits, some states put time limits?

Mr. Richard G. Bell: No --

Chief Justice Warren E. Burger: Three months --

Mr. Richard G. Bell: No, if the garnishment is properly effective at the outset of suit it will remain pending throughout the duration of the suit.

So its time limit is so extensive with the tendency of the laws of itself.

Chief Justice Warren E. Burger: So, if the lawsuit -- it is in a particular district where three years in reaching cases for trial or money have been impounded all that time.

Mr. Richard G. Bell: That is correct.

The garnishment would continue to apply during the pendency of that action and until the -- within a certain period following judgment as a matter of fact allowing for execution on that garnish.

That is correct.

The -- what I am trying to make though is that the process from the beginning, it is circumscribe, with respect to certain classes of assets and certain classes of suits and certain classes of plaintiffs for whom or as to whom the process is simply not available.

Now, these two plaintiffs in the basic cases below had money claims against the defendants.

One sued on a note the other provided a writ.

They were prohibited by Connecticut statute from attaching the kinds of asset or seeking to garnish the kinds of assets that I have described.

That is wages at the source, automobiles without a court order, necessarily household, personal effects or tools of one’s pre tree.

They were permitted to garnish to reach the assets not in the hands of the debtor but in the hands of a third party.

In this case there was one hand of savings account and the other hand a checking account, essentially a debt due which is the keyword in our garnishment statute from those banking institutions to the defendants in question.

Now the effect of doing so is to put a place, a conditional lien, on that asset during dependency of that lawsuit.

Once that is done, that is once the garnishment process is effected there are provisions under the statute whereby the defendants can come in directly to the court for reduction, for a bill of particulars for verification of the claim, for a substitution of bond.

And that does not rely on the pendency of the suit; that can be done as soon as the garnishment process has been reached.

But it was under these circumstances, i.e., in looking at debt due to defendants from a third party that the court below attempted to analyze the nature of the interest involved and found it to be essentially a property interest, i.e., is one measurable by money since the accounts in question were fixed amounts.

Being a property, interest it found it not to lie within the 1343 formulation under the Eisen and the Hague rationales and being merely a property interest.

The decision of the lower court based -- finding itself without jurisdiction was based on implicit assumption that would be subject to the 1331 jurisdictional statute.

Now, there was no alternative holding in the court below and that was the one predicated on 2283.

2283 being the anti-injunction statute which proscribes the application of injunction during the pendency of State Court proceeding, and this was relied upon by the lower court as an alternative holding having addressed itself to the jurisdictional issue first.

Now, the purpose and the policy of 2283, I believe, are familiar.

The statute dates from 1793 and it reflects the kind of sensitive concern for state proceedings that ought to be had by the Federal Judicial system once the state proceeding or once the State system has been set in motion.

It was a matter of first business for the Congress of United States to establish that relation between the two judicial processing.

Now the Connecticut garnishment statute or the attachment statute with which we are dealing with, dates of almost equal vintage as a matter of fact; it goes back to the beginning of the State of Connecticut and represents a scheme that has been in effect in the State of Connecticut during its judicial history.

You must have this old state policy and a venerable federal policy now in focus within the confines of Section 2283, the anti-injunction statute.

Now, the question becomes whether for the purposes of Section 2283, the garnishment arrangement in Connecticut, the garnishment machinery, constitutes proceedings within the meaning of Section 2283 as to which the federal action should be staid during the pendency of the state case and the state proceedings.

Justice Thurgood Marshall: It is not the court proceeding, is it?

Mr. Richard G. Bell: Excuse me.

Justice Thurgood Marshall: It is not a Court proceeding, is it?

Mr. Richard G. Bell: Well, it involves court procedures Your Honor.

It is affected that is to --

Justice Thurgood Marshall: This particular case does not involve a court proceeding.

Mr. Richard G. Bell: Well, and that it invokes the utilization of statutory procedures in court or attacking the garnishment, if that is desired by the defendants.

Justice Thurgood Marshall: Well, that would these people do in the Connecticut Court?

Mr. Richard G. Bell: They did nothing, I believe.

Justice Thurgood Marshall: Has this of Court proceeding of the State of Connecticut?

Mr. Richard G. Bell: Well, that bears on the question of what is a proceeding under 2283.

It is true that the garnishment --

Justice Thurgood Marshall: It is a court proceedings, it says that, does it not?

Mr. Richard G. Bell: Yes, Your Honor.

It is our position that that is a proceeding and that it is a proceeding --

Justice Thurgood Marshall: Yes, but it is a court proceeding?

My emphasis is on the word ‘court’ or ‘legal’.

Mr. Richard G. Bell: Well, the concept of proceedings in 2283 Your Honor, I believe takes in all phases of a lawsuit and it takes them in from beginning to end.

There is a Hill against Martin decision which is cited --

Justice Thurgood Marshall: Well, suppose the -- I am sure you are familiar because this client, suppose your client repossesses a car, would that be a court proceeding?

Mr. Richard G. Bell: Well, he needs to proceed with an order of court Your Honor at the upset and that --

Justice Thurgood Marshall: Does he in Connecticut?

Mr. Richard G. Bell: Yes, Your Honor.

Justice Thurgood Marshall: That is because of Connecticut statute, is it not?

Mr. Richard G. Bell: That is correct Your Honor.

Justice Thurgood Marshall: But that is not normally so, is it?

Mr. Richard G. Bell: For automobiles that could -- it is a statute as proscribed.

Justice Thurgood Marshall: If I understand Mrs. Lynch made this note and did not pay the money, you go to the sheriff or deputy sheriff and he garnishes the bank account.

Mr. Richard G. Bell: That is correct.

Justice Thurgood Marshall: And none of that up to that point has ever happened anywhere in (Inaudible).

Mr. Richard G. Bell: That is correct Your Honor.

That is correct.

Justice Thurgood Marshall: That is where this case was when it came in to Federal Court, was it not?

Mr. Richard G. Bell: Well, this case was -- this case was pending at the time the federal action was instituted.

That is the basic interest --

Justice Thurgood Marshall: That is the case that you filed, and as I understand they are not trying to get an injunction against that case, am I right?

Mr. Richard G. Bell: Well, they are not seeking to enjoin the application of the utilization of the Connecticut statutes.

Justice Thurgood Marshall: They are seeking to get the money back.

Mr. Richard G. Bell: That is correct.

They are seeking to join the application --

Justice Thurgood Marshall: And they do not need the Connecticut Court to get that money back.

Mr. Richard G. Bell: Well, I think that is the question, and then one of the allegations is that they make it that the Connecticut Courts do not have the machinery to do just that.

Justice Thurgood Marshall: Well, all I am trying to test you a little, I admit I am being over technical about this, but I just do not see that -- I do not think the sheriff is the court, the deputy sheriff.

Mr. Richard G. Bell: Maybe I could explain it this way.

If the question zeroes in on exactly what proceedings are within the concept of 2283, I would suggest this: If the -- given the policy of 2283 which is that concern for the relation of this judicial systems, given the fact that the question as a matter of fact as to constitutionality is an open question in the Connecticut Courts and given the language of prior court decision here in Hill against Martin I would suggest that is proceedings.

The Hill language of Mr. Justice Frankfurter suggested that the concept of proceedings for 2283 purposes should include all steps and all phases of a lawsuit or actions by ministerial officers of the court including else which are directive either ancillary or supplementary for its making of the suit or the judgment effective.

And I would say that that concept to proceedings dealing with the whole workings of the judicial processes of a state does include the process of garnishment and does include the process of attachment.

Justice Thurgood Marshall: The sheriff in Connecticut are elected or appointed by the court?

Mr. Richard G. Bell: I believe that deputy sheriff in service was appointed, he is appointed, I believe, by a sheriff who is an elected official if I am not mistaken, I believe that is the case.

Justice Thurgood Marshall: Well, is he responsible for the court?

Mr. Richard G. Bell: Well, he is a -- he is an officer, an administerial officer who must at least have enough colors of state law that fit in under the original statute at the outset.

Justice Thurgood Marshall: I apologize for being even more practical.

Mr. Richard G. Bell: No, I would suggest that he is a ministerial officer in serving the writs of the papers involved in a garnishment process.

The lawyer is the one who initiates the action who in Connecticut is termed the Commissioner of the Superior Court or an officer of the Court.

He must work through a statutorily designated officer to serve process who in so doing is a ministerial officer of the Court, I would submit, for the purposes of Section 2283 and its concept of proceeding.

Now, I think the expressed language of that Hill case is significant because it emphasizes, it is not just the question of liability or not in the lawsuit itself, it embraces those activities triggered by the lawsuit which bear upon making a judgment secure or effective, ancillary proceedings instituted by ministerial officers.

And I believe that concept of proceedings, when we have a pending state action, is the one that you would apply under Section 2283.

Now, one of the things that was raised by --

Justice William J. Brennan: May I ask Mr. Bell, I am looking at the opinion of the court below on Page 26.

What they have said is although garnishment maybe separated from the underlying (Inaudible) of action.

What does the Court mean by that?

Mr. Richard G. Bell: I believe what it was saying Your Honor is that the question for instance of liability or not the basic rationale of any judgment that might be rendered by the Court is separate from the garnishment proceeding.

I believe that is the context Mr. Justice Brennan in which the Three-Judge Court below strategically --

Justice William J. Brennan: I do not mind anywhere in this opinion, I gather under the statute, now the question is whether this garnishment, whatever it is, is a proceeding in a State Court, did you get it, that the question.

Mr. Richard G. Bell: That is correct.

Justice William J. Brennan: And I do not see that this opinion addresses itself directly to that question, does it?

Mr. Richard G. Bell: I take its language is not as direct as I would have like to have seen it but the holding under 2283 must necessarily involve the conclusion that it constitutes proceedings.

There was reference made by the --

Justice William J. Brennan: Well, more than proceedings whether it constitutes proceedings in a State Court.

Mr. Richard G. Bell: That is correct.

Justice William J. Brennan: That is what the statute is.

Mr. Richard G. Bell: That is correct, well there is not any question that the basic garnishment than -- that is reflected both Lynch and Toro were in connection with a proceeding to pending State Court action that is both cases where pending at that time in a Sixth Circuit Court in Connecticut as to which these garnishments had in fact ineffective.

And I think what the --

Justice William J. Brennan: Incidentally when were the complaints, repetitive complaints filed in, in a relation to the time with the Federal Court complaints.

Mr. Richard G. Bell: Well, I think within -- in relation to the Federal Court?

Justice William J. Brennan: Yes.

Mr. Richard G. Bell: Well, the creditor’s complaints were filed in Lynch on July 1, 1970, Toro in February.

And the complaints in the Federal Court, well, I believe in March-April, 1971

Justice William J. Brennan: But, in any event, after the creditor’s complaints were filed in the State Court.

Mr. Richard G. Bell: Yes, those actions were --

Justice William J. Brennan: But I gather -- but it is the case, is it not, that the complaint in Federal Court did not ask for any restraint against the prosecution of the creditor’s complaints in State Court?

Mr. Richard G. Bell: Well, that is not prosecutions; that was an injunction against the utilization of this Connecticut garnishments statute.

Justice William J. Brennan: Now that my question was Mr. Bell.

It did not ask any restraint against the creditors going on with their creditor’s suits, did it?

Mr. Richard G. Bell: I have to answer that you are correct Mr. Justice Brennan as far as the suit is concerned but I have -- but they did seek -- they did seek the application --

Justice William J. Brennan: Well, what they want to do is take a way from you the security you now held under the garnishment --

Mr. Richard G. Bell: That is correct.

Justice William J. Brennan: process, but whether recovery of a judgment if you got it in there.

Mr. Richard G. Bell: That is correct.

Justice William J. Brennan: Is that not it?

Mr. Richard G. Bell: That is precisely correct.

Now that --

Justice William J. Brennan: Now, are we to -- how should we approach interpreting proceedings in the State Court strictly or --

Mr. Richard G. Bell: I believe that Hill v. Martin suggests that given the policy of 2283 that it needs to be a generous instruction, that the concern expressed in the statute is for the operation of a State jurisdiction.

Justice William J. Brennan: You mean generous against jurisdiction.

Mr. Richard G. Bell: Well, I think it requires a broad interpretation because of the --

Justice William J. Brennan: A broad interpretation against jurisdiction.

Mr. Richard G. Bell: I believe so because I think the concern --

Justice William J. Brennan: The jurisdiction I mean against the --

Mr. Richard G. Bell: I believe the concern is to permit if it is appropriate to permit the State proceedings to go on.

Now, one of the points made by the appellants is that it is not incumbent to do so here because there is not any way to raise the question than they want to raise in the State Court.

I think that appears in the situation.

What they have said is that even if 2283 applies at the outset, we have a situation in Connecticut where you cannot raise the constitutional claims that they sought to raise in Federal Court.

Where there is no relief in the state process then out of 2293 notwithstanding of the Federal Court should have taken jurisdiction and should have proceeded.

We would dispute the availability of claims in the -- of remedies available in the State Court.

Justice William J. Brennan: Excuse me Mr. Bell, is the question before us whether 1983 is an expressed deception.

Mr. Richard G. Bell: I believe it is a --

Justice William J. Brennan: And I noticed it was decided apparently or the Second Circuit poses it is not.

It is not recognized that 1983 is an express of Section 2283.

Is that issue before us?

Mr. Richard G. Bell: I believe it is with the total 23 issues Your Honor.

But to dwell just a moment on State remedies, if I may, because I believe that is an important point.

If there were no remedies nor procedures nor processes in Connecticut for raising the kinds of issues then we might have a different kind of situation.

I would like to observe that you could raise exactly the kind of issues in the pending state proceedings that were in fact raised in the District Court.

I am not dealing now with the preliminary relief --

Justice William J. Brennan: To which, in the creditor’s action?

How do you do it?

Mr. Richard G. Bell: I believe if you sought an injunction in a State Court proceeding that is available by way of a counterclaim in court --

Justice William J. Brennan: Now, the creditor brings a suit for recovery on a note, is that what it was?

Mr. Richard G. Bell: That is right.

Justice William J. Brennan: And in that proceeding you are suggesting the defendant is seeking an injunction against the garnishment.

Mr. Richard G. Bell: I am.

I am suggesting that the defendant can raise either by independent action or by counterclaim in the state suit, an injunction based on the debt claim deprivation under the Fourteenth Amendment.

And that it could also has a declaratory judgment process which is available to a defendant.

Justice William J. Brennan: But that would be independent, that would be independent suit, would it not?

Mr. Richard G. Bell: It could either be by independent suit Mr. Justice Brennan or by way of counterclaim.

Now the declaratory judgment is a little different in this particular Court.

The Circuit Court in which these actions lay, the Sixth Circuit Court, does not have declaratory judgment jurisdiction.

You could raise it in a counterclaim as we have noted on our brief and then transfer it to another Court of appropriate jurisdiction.

Justice William J. Brennan: The whole suit then or just a counterclaim?

Mr. Richard G. Bell: The whole action would follow.

But the point is that under Connecticut practice both the injunctive relief is available and that is within the jurisdiction of this precise court and the declaratory relief is also available, and I believe that the law of the State of Connecticut assures it.

Reference has been made to Michael’s Jewelers against Handy which was a Sixth Circuit Court case of involving the same kinds of set of facts.

That is the garnishment response by a defendant.

A motion for injunction was presented to the Court there and that Court addressed itself substantively to the constitutionality of the garnishment process in the light of SNAIDACH.

It held on the merits that it was constitutional.

I supposed that settles for the time being the law of the Sixth Judicial Circuit.

But the point is, it indicates illustrators that cannot come up by motion.

A better way I submit would have been through if done so by counterclaim or by the declaratory judgment proceeding and even more effective device I also suggest come from 1983, the federal statute itself, which provides for a civil cause of action for damages in the event of deprivation.

That lies by way of counterclaim in the same Sixth Circuit Court which has the unique advantage of avoiding any mootness problem that we had in Toro, for instance you would call the companion Lynch here involve with situation, where the garnishment was in fact released as civil cause of action by way of counterclaim under 1983 for which the State Courts have concurrent jurisdiction to handle avoids very nicely the problem of mootness and combined with injunctive request and combine with declaratory judgment permits the raising in exactly the same court below, the Sixth Circuit Court in the Hague in Connecticut are precisely the issues that were sought to be presented to the Federal Court and the claims that have brought to the Three-Judge Courts.

So I would say that that the availability of state remedies in the State Courts makes at all the law incumbent for under the 2283 fellow ups and to have consideration for the breadth of the proceedings which are then pending and to permit them to continue.

The constitutional issue has never been presented to the Connecticut Supreme Court throughout the long history of the garnishment process.

The constitutional issue both as to the US Constitution and even under the State of Connecticut Constitutions which is a brand new constitutional since 1965, it adopted a new one.

Those are open issues as far as the State is concerned and that State Supreme Court has never in light of SNAIDACH examined this process.

I believe all the more reason to construe the concepts of proceedings as it is construed in Hill against Martin forbear of the Federal intervention and permit the State Court process to continue.

The question of expressed exception to 2283 is discussed at length in our brief and all I would say in conclusion is that it is not just an exception it is an expressed exception which is required to 2283, at least some reference in the statute which takes cognizance of the problem of two pending actions going on simultaneously and tells one or the other to stay or to proceed.

There is no expressed reference in 1983 to that problem.

There is no mention of the difficulty exposed by two pending actions and no requirement of one if the other go forward as is the case with virtually everyone of those expressed exceptions which have been historically noted to the 2283 statute.

I have not had occasion to discuss further the request for declaratory relief which was embodied here or the denial of the injunctive remedy below, we believe it takes care of that request as well which was made our position on that as stated in the brief is that the request for declaratory judgment is essentially of the same effect as the request for declaratory -- for injunctive relief and we believe that the prior decision in cases so hold.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Bell.

Mr. Lesser you have about ten minutes left.

Rebuttal of David M. Lesser

Mr. David M. Lesser: Mr. Chief Justice and may it please the Court.

As to the question of whether relief lies in the Connecticut Courts, I would first like to make the point that any such affirmative actions would of course be entirely separate proceedings against which no injunction is being sought.

Now, as to the Michael’s Jewelers case, there the Appellate Court, the Appellate Division of Circuit Court held that no appeal would lie from the refusal of the lower court to dissolve the garnishment on the ground that it is was levied without notice or hearing.

The Appellate Court held that the three -- that the Circuit Court, the lower court, had no authority to entertain any relief and then it said, but at any rate Connecticut statutes providing for prejudgment garnishment of accounts is constitutional distinguishing SNIADACH.

Chief Justice Warren E. Burger: Do you agree with your friend that your client can assert a counterclaim --

Mr. David M. Lesser: No I do not.

Chief Justice Warren E. Burger: -- under 1983 grounds?

Mr. David M. Lesser: I do not believe that a counterclaim would lie in the Sixth Circuit Court action where the creditors service pending against Mrs. Lynch, Mr. Chief Justice.

A counterclaim must be related to the matter in demand.

That is the way the practice book reads.

I believe that Section 124 of the Connecticut practice book in it --

Chief Justice Warren E. Burger: But does -- do you say it does not relate to the matter in demand when the counterclaim would be against the unlawful act of garnishment (Voice Overlap).

Mr. David M. Lesser: The garnishment would be unrelated to the complaints that alleged.

That is, the claim of Household Finance Corporation that money is doing owing from a note.

The only case I have been able to find is the case called the Bank against Riley (ph) reported in 12 Connecticut supplement in which it was held that a counterclaim in those circumstances would not lie.

Now -- but at any rate, it would seem that the issues in the Circuit Court have been settled by Michael’s Jewelers one way or another.

Either the Court cannot entertain the complaint, the motion to dissolve the garnishment or if it can -- if it can entertain it nevertheless, garnishment is still constitutional.

And let me simply refer the Court to our reply brief at Pages 23 and 24 in which we set out the substantial cause of litigating in the Connecticut Courts in order to bring a suit for declaratory judgment.

For example, it is necessary as a jurisdictional requirement to notify all interested parties which carries a substantial cause.

Now, the Connecticut Supreme Court has, during all the years of this century, affirmed the constitutionality of summary prejudgment garnishment.

Not since SNIADACH; that is true, but in the Michael’s Jewelers case the Appellate Court opinion, the Appellate Court did not certify that a substantial question of law was involved thereby making an appeal to the Connecticut Supreme Court impossible.

What occurred in that case was I suppose an equivalent of certiorari, the debtor filed a petition for certification to the Connecticut Supreme Court but that was never acted upon because then the creditor withdrew his underlying damage suit.

I would finally like to the state that a lawyer is not a ministerial officer of the Court and I would refer the -- and neither is a sheriff.

The sheriff is acting under the instructions of the lawyer who, under the decisions of the Connecticut Supreme Court, has full absolute discretion in levying a writ of garnishment.

I would refer the Court to the Sachs case again, Volume 92, Connecticut, Page 16 of our brief, in a case which is not in any of our briefs, Sharkovitz (ph) against Smith in Volume 143 of Connecticut reports.

We also state in our brief that even if the garnishment represents an abuse of process, the State Court is barred from releasing that garnishment.

Thus under Hill against Martin we would say that there is no action by the Court or any of its ministerial officers and therefore garnishment is not a proceeding in the State Court.

As to the remarks on jurisdiction, we will rest on our argument and our briefs unless there are further questions.

Thank you very much for the opportunity of being here.

Chief Justice Warren E. Burger: Thank you Mr. Lesser.

Thank you Mr. Bell.

The case is submitted.