Sniadach v. Family Finance Corporation of Bay View/Dissent Black

Mr. Justice BLACK, dissenting.

The Court here holds unconstitutional a Wisconsin statute permitting garnishment before a judgment has been obtained against the principal debtor. The law, however, requires that notice be given to the principal debtor and authorizes him to present all of his legal defenses at the regular hearing and trial of the case. The Wisconsin law is said to violate the 'fundamental principles of due process.' Of course the Due Process Clause of the Fourteenth Amendment contains no words that indicate that this Court has power to play so fast and loose with state laws. The arguments the Court makes to reach what I consider to be its unconstitutional conclusion, however, show why it strikes down this state law. It is because it considers a garnishment law of this kind to be bad state policy, a judgment I think the state legislature, not this Court, has power to make. The Court shows it believes the garnishment policy to be a "most inhuman doctrine"; that it "compels the wage earner, trying to keep his family together, to be driven below the poverty level"; that "in a vast number of cases the debt is a fraudulent one, saddled on a poor ignorant person who is trapped in an easy credit nightmare, in which he is charged double for something he could not pay for even if the proper price was called for, and then hounded into giving up his pound of flesh, and being fired besides."

The foregoing emotional rhetoric might be very appropriate for Congressmen to make against some phases of garnishment laws. Indeed, the quoted statements were made by Congressmen during a debate over a proposed federal garnishment law. The arguments would also be appropriate for Wisconsin's legislators to make against that State's garnishment laws. But made in a Court opinion, holding Wisconsin's law unconstitutional, they amount to what I believe to be a plain, judicial usurpation of state legislative power to decide what the State's laws shall be. There is not one word in our Federal Constitution or in any of its Amendments and not a word in the reports of that document's passage from which one can draw the slightest inference that we have authority thus to try to supplement or strike down the State's selection of its own policies. The Wisconsin law is simply nullified by this Court as though the Court had been granted a super-legislative power to step in and frustrate policies of States adopted by their own elected legislatures. The Court thus steps back into the due process philosophy which brought on President Roosevelt's Court fight. Arguments can be made for outlawing loan sharks and installment sales companies but such decisions, I think, should be made by state and federal legislators, and not by this Court.

This brings me to the short concurring opinion of my Brother HARLAN, which makes 'explicit the precise basis' on which he joins the Court's opinion. That basis is:

'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.'

Every argument implicit in this summary statement of my Brother HARLAN'S views has been, in my judgment, satisfactorily answered in the opinion of the Supreme Court of Wisconsin in this case-an outstanding opinion on constitutional law. 37 Wis.2d 163, 154 N.W.2d 259. That opinion shows that petitioner was not required to wait until the 'culmination of the main suit,' that is, the suit between the creditor and the petitioner. In fact the case now before us was not a final determination of the merits of that controversy but was, in accordance with well-established state court procedure, the result of a motion made by the petito ner to dismiss the garnishment proceedings. With reference to my Brother HARLAN'S statement that petitioner's deprivation could not be characterized as de minimis, it is pertinent to note that the garnishment was served on her and her employer on the same day, November 21, 1966; that she, without waiting for a trial on the merits filed a motion to dismiss the garnishment on December 23, 1966, which motion was denied by the Circuit Court on April 18, 1967; and that it is that judgment which is before us today. The amount of her wages held up by the garnishment was $31.59. The amount of interest on the wages withheld even if computed at 10% annually would have been about $3. Whether that would be classified as de minimis I do not know and in fact it is not material to know for the decision of this case.

In the motion to dismiss, petitioner, according to the Supreme Court of Wisconsin, asserted a 'number of grounds based on injustices and deprivations which have been, or are likely to be, suffered by others, but which she has not personally experienced.' 37 Wis.2d 163, 166, 154 N.W.2d 259, 261. The court went further and pointed out that under Wisconsin law the court would not strike down a law as unconstitutional on the ground that some person other than the challenger of that law might in the future be injured by its unconstitutional part. It would seem, therefore, that the great number of our cases holding that we do not determine the constitutionality of state statutes where the judgment on them was based on state law would prevent our passing on this case at all.

The indebtedness of petitioner was evidenced by a promissory note, but petitioner's affidavit in support of the motion to dismiss, according to the Wisconsin Supreme Court contained no allegation that she is not indebted thereon to the plaintiff. Of course if it had alleged that, or if it had shown in some other way that this was not a good-faith lawsuit against her, the Wisconsin opinion shows that this could have disposed of the whole case on the summary motion.

Another ground of unconstitutionality, according to the state court, was that the Act permitted a defendant to post a bond and secure the release of garnished property and that this provision denied equal protection of the law 'to persons of law income.' With reference to this ground, the Wisconsin court said:

'Appellant has made no showing that she is a person of low     income and unable to post a bond.' 37 Wis.2d, at 167, 154      N.W.2d, at 261.

Another ground of unconstitutionality urged was that since many employers discharged garnished employees for being unreliable, the law threatened the gainful employment of many wage earners. This contention the Supreme Court of Wisconsin satisfactorily answered by saying that petitioner had 'made no showing that her own employer reacted in this manner.'

Another ground challenging the state act was that it affords 10 days' time to a plaintiff to serve the garnishee summons and complaint on the defendant after service of the summons on the garnishee. This, of course, she could not raise. The Wisconsin Supreme Court's answer to this was that petitioner was served on the same day as the garnishee.

The state court then pointed out that the garnishment proceedings did not involve 'any final determination of the title to a defendant's property, but merely preserve(d) the status quo thereof pending determination of the principal action.' 37 Wis.2d, at 169, 154 N.W.2d, at 262. The court then relied on McInnes v. McKay, 127 Me. 110, 141 A. 699. That suit related to a Maine attachment law which, of course, is governed by the same rule as garnishment law. See 'garnishment,' Bouvier's Law Dictionary; see also Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The Maine law was subjected to practically the same challenges that Brother HARLAN and the Court raise against this Wisconsin law. About that law the Supreme Court of Maine said:

'But, although an attachment may, within the broad men ing of     the preceding definition, deprive one of property, yet      conditional and temporary as it is, and part of the legal      remedy and procedure by which the property of a debtor may be      taken in satisfaction of the debt, if judgment be recovered,      we do not think it is the deprivation of property      contemplated by the Constitution. And if it be, it is not a     deprivation without 'due process of law' for it is a part of      a process, which during its proceeding gives notice and      opportunity for hearing and judgment of some judicial or      other authorized tribunal. The requirements of 'due process     of law' and 'law of the land' are satisfied.' 127 Me. 110,     116, 141 A. 699, 702-703.

This Court did not even consider the challenge to the Maine law worthy of a Court opinion but affirmed it in a per curiam opinion, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 on the authority of two prior decisions of this Court. See also Standard Oil Co. v. Superior Court in and for New Castle County, 5 Terry 538, 44 Del. 538, 62 A.2d 454, 14 A.L.R.2d 405, appeal dismissed, 336 U.S. 930, 69 S.Ct. 738, 739, 93 L.Ed. 1090; Harris v. Balk, 198 U.S. 215, 222, 227-228, 25 S.Ct. 625, 628-629, 49 L.Ed. 1023.

The Supreme Court of Wisconsin, in upholding the constitutionality of its law also cited the following statement of our Court made in Rothschild v. Knight, 184 U.S. 334, 341, 22 S.Ct. 391, 393, 46 L.Ed. 573:

'To what actions the remedy of attachment may be given is for     the legislature of a State to determine and its courts to      decide *  *  * .'

Accord, Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 193, 61 S.Ct. 513, 517, 85 L.Ed. 725.

The Supreme Court of Wisconsin properly pointed out:

'The ability to place a lien upon a man's property, such as     to temporarily deprive him of its beneficial use, without any      judicial determination of probable cause dates back not only      to medieval England but also to Roman times.' 37 Wis.2d at      171, 154 N.W.2d at 264.

The State Supreme Court then went on to point out a statement made by Mr. Justice Holmes in Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107:

'The Fourteenth Amendment, itself a historical product, did     not destroy history for the States and substitute mechanical      compartments of law all exactly alike. If a thing has been     practiced for two hundred years by common consent, it will      need a strong case for the Fourteenth Amendment to affect it,      as is well illustrated by Ownbey v. Morgan, 256 U.S. 94, 104,      112, 41 S.Ct. 433, 65 L.Ed. 837.'

The Ownbey case, which was one of the two cited by this Court in its per curiam affirmance of McInnes v. McKay, supra, sustained the constitutionality of a Delaware attachment law. And see Byrd v. Rector, 112 W.Va. 192, 163 S.E. 845, 81 A.L.R. 1213.

I can only conclude that the Court is today overruling a number of its own decisions and abandoning the legal customs and practices in this country with reference to attachments and garnishments wholly on the ground that the garnishment laws of this kind are based on unwise policies of government which might some time in the future do injury to some individuals. In the first sentence of the argument in her brief, petitioner urges that this Wisconsin law 'is contrary to public policy'; the Court apparently finds that a sufficient basis for holding it unconstitutional. This holding savors too much of the 'Natural Law,' 'Due Process,' 'Shock-the-conscience' test of what is constitutional for me to agree to the decision. See my dissent in Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903.

ADDENDUM.

The latest statement by my Brother HARLAN on the power of this Court under the Due Process Clause to hold laws unconstitutional on the ground of the Justices' view of 'fundamental fairness' makes it necessary for me to add a few words in order that the differences between us be made absolutely clear. He now says that the Court's idea of 'fundamental fairness' is derived 'not alone * *  * fromt he specifics of the Constitution, but also *  *  * from concepts which are part of the Anglo-American legal heritage.' This view is consistent with that expressed by Mr. Justice Frankfurter in Rochin v. California that due process was to be determined by 'those canons of decency and fairness which express the notions of justice of English-speaking peoples *  *  * .' 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183. In any event, my Brother HARLAN'S 'Anglo-American legal heritage' is no more definite than the 'notions of justice of English-speaking peoples' or the shock-of-the-conscience test. All of these so-called tests represent nothing more or less than an implicit adoption of a Natural Law concept which under our system leaves to judges alone the power to decide what the Natural Law means. These so-called standards do not bind judges within any boundaries that can be precisely marked or defined by words for holding laws unconstitutional. On the contrary, these tests leave them wholly free to decide what they are convinced is right and fair. If the judges, in deciding whether laws are constitutional, are to be left only to the admonitions of their own consciences, why was it that the Founders gave us a written Constitution at all?