Sniadach v. Family Finance Corporation of Bay View/Concurrence Harlan

Mr. Justice HARLAN, concurring.

Particularly in light of my Brother BLACK'S dissent, I think it not amiss for me to make explicit the precise basis on which I join the Court's opinion. The 'property' of which petitioner has been deprived is the use of the garnished portion of her wages during the interim period between the garnishment and the culmination of the main suit. Since this deprivation cannot be characterized as de minimis, she must be accorded the usual requisites of procedural due process: notice and a prior hearing.

The rejoinder which this statement of position has drawn from my Brother BLACK prompts an additional word. His and my divergence in this case rests, I think, upon a basic difference over whether the Due Process Clause of the Fourteenth Amendment limits state action by norms of 'fundamental fairness' whose content in any given instance is to be judicially derived not alone as my colleague believes it should be, from the specifics of the Constitution, but also, as I believe, from concepts which are part of the Anglo-American legal heritage-not, as my Brother BLACK continues to insist, from the mere predilections of individual judges.

From my standpoint, I do not consider that the requirements of 'notice' and 'hearing' are satisfied by the fact that the petitioner was advised of the garnishment simultaneously with the garnishee, or by the fact that she will not permanently lose the garnished property until after a plenary adverse adjudication of the underlying claim against her, or by the fact that relief from the garnishment may have been available in the interim under less than clear circumstances. Compare the majority and dissenting opinions in the Wisconsin Supreme Court, 37 Wis.2d 163, 178, 154 N.W.2d 259, 267 (1967). Apart from special situations, some of which are referred to in this Court's opinion, see ante, at 339, I think that due process is afforded only by the kinds of 'notice' and 'hearing' which are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property or its unrestricted use. I think this is the thrust of the past cases in this Court. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); Opp Cotton Mills v. Administrator, 312 U.S. 126, 152-153, 61 S.Ct. 524, 535-536, 85 L.Ed. 624 (1941); United States v. Illinois Cent. R. Co., 291 U.S. 457, 463, 54 S.Ct. 471, 473, 78 L.Ed. 909 (1934); Londoner v. City & County of Denver, 210 U.S. 373, 385-386, 28 S.Ct. 708, 713-714, 52 L.Ed. 1103 (1908). And I am quite unwilling to take the unexplicated per curiam in McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929), as vitiating or diluting these essential elements of due process.

Mr. Justice BLACK, dissenting.