Fuentes v. Shevin

PETITIONER:Fuentes
RESPONDENT:Shevin
LOCATION:US District Court for the Northern District of Texas

DOCKET NO.: 70-5039
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 407 US 67 (1972)
ARGUED: Nov 09, 1971
DECIDED: Jun 12, 1972

ADVOCATES:
C. Michael Abbott – for appellants Margarita Fuentes and others, pro hac vice, by special leave of Court
David A. Scholl – for the appellants Paul Parham and others, pro hac vice, by special leave of Court
George W. Wright, Jr. – for appellee Firestone Tire and Rubber Co
Herbert T. Schwartz
Robert F. Maxwell – for appellees, Americo V

Facts of the case

Question

Audio Transcription for Oral Argument – November 09, 1971 in Fuentes v. Shevin

Warren E. Burger:

We will hear arguments is in 5138, Parham against Cortese.

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

David A. Scholl:

Mr. Chief Justice —

Warren E. Burger:

We will try to complete tonight, if it is all possible.

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.

David A. Scholl:

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

What is he advised?

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.

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

David A. Scholl:

Yes.

I think it is.

72 hours?

Double the amount.

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

David A. Scholl:

That is right!

Is that it?

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.

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

David A. Scholl:

It is prothonotary.

prothonotary.

David A. Scholl:

So you can refer to him as the clerk.

Right![Laughter]

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

David A. Scholl:

Exactly.

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

David A. Scholl:

It is filed with the prothonotary with the court clerk and to that extent; it is filed in a court.

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

David A. Scholl:

That is right, Of course —

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

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 —

(Inaudible)

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 –-

Well what happens if the consumer filed this double bond?

David A. Scholl:

Well he —

And get the property back, then what happens?

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 —

And what something?

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 —

That thing would get you before a judge?

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.

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

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

David A. Scholl:

That is right.

So they can get back to the property.

David A. Scholl:

Then they will get the property back.

There is another occasion for controversy.

And the other was to file a praecipe?

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.

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

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.

Where the Florida proceeding begins?

David A. Scholl:

Right.

Exactly.

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

David A. Scholl:

That is right.

And without filing any bond.

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.

Within that period of time.

And then the third alternative is, to yourself.

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

David A. Scholl:

Right! That is always permissible.

Yes.

David A. Scholl:

I think it would be in any —

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

David A. Scholl:

Well, I never thought of that analogy.[Laughter]

As a matter of speaking?

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.

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

David A. Scholl:

Well, he does not get, he did does not get notice.

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?

David A. Scholl:

That is correct Your Honor.

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

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.

What happened if Mr. Cortese had —

David A. Scholl:

Well, he is the prothonotary.

I am sorry.

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

David A. Scholl:

I think so.

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?

David A. Scholl:

Well, it could go on, I guess for any length of time.

Thurgood Marshall:

I would suggest —

With the merits of the case never determined?

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 —

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

David A. Scholl:

But presuming that —

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

David A. Scholl:

You could just keep going indefinitely and —

With never any resolution of the merits of the controversy.

David A. Scholl:

That is correct Your Honor

How you ever noted that?

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.

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 —

Well, have you ever heard of that instance ever happen?

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.

David A. Scholl:

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

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?

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.

That is what I thought.

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.

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?

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.

Warren E. Burger:

We are talking about replevin of a piece of the merchandise now.

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 —

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

Are they main plaintiffs?

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.

Are the two debtors agreed they were in default?

David A. Scholl:

No.

There was no —

They were not behind in their payments.

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.

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?

David A. Scholl:

Yes, I would say it is.

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

David A. Scholl:

I think that it is.

David A. Scholl:

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 —

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?

David A. Scholl:

No, what I am suggesting —

Thurgood Marshall:

Because you are unemployed?

Is that good defense?

David A. Scholl:

That is not what I meant to suggest Mr. Justice Marshall.

Perhaps, I ought to explain —

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?

David A. Scholl:

I am saying that it may have this —

Thurgood Marshall:

Is it optimism?

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 —

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?

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.

Thurgood Marshall:

Yes, that he does not notify?

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 —

Thurgood Marshall:

How could you mean, he does not notify?

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.

David A. Scholl:

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.

Warren E. Burger:

However, the parties undertake the substitute agreements in advance for these processes?

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 —

Thurgood Marshall:

(Inaudible) only for limited decisions?

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.

Thurgood Marshall:

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

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 —

Thurgood Marshall:

You think that is a fair interpretation?

David A. Scholl:

I think that it is.

I think that is ambiguous retake.

Thurgood Marshall:

It is your interpretation that Mr. Epps could stop them from repossessing?

David A. Scholl:

I think a fair interpretation is that all retake means is repossession.

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?

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.

Thurgood Marshall:

Well, I assume that (Inaudible)

David A. Scholl:

I think that is all that they reached.

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.

David A. Scholl:

I would not —

Thurgood Marshall:

Without (Inaudible)

David A. Scholl:

I would not interpret that contract as permitting a forcible seizure merely because the meaning of repossession —

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?

David A. Scholl:

I would agree with you, Your Honor, but —

Thurgood Marshall:

But how do you have a right if he can stop it?

David A. Scholl:

Well, by definite —

Thurgood Marshall:

(Inaudible)

David A. Scholl:

Well, it is —

Thurgood Marshall:

I see it as an abstract right.

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.

Warren E. Burger:

Excuse me Mr. Scholl, your time is up.

David A. Scholl:

Thank you, Your Honor.

Warren E. Burger:

Mr. Maxwell.

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.

Robert F. Maxwell:

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 —

William J. Brennan, Jr.:

This I gather that in the repossession that was taken by the sheriff?

Robert F. Maxwell:

That is right, Yes sir.

In other words —

William J. Brennan, Jr.:

And if the result is a discharge bond then what happens?

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.

William J. Brennan, Jr.:

Does adjusting the bond means an adjustment to the amount —

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.

Robert F. Maxwell:

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 —

(Inaudible)

Robert F. Maxwell:

Pardon?

What is the hold out in state in 49?

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.

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?

Robert F. Maxwell:

Well sir —

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?

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)

Potter Stewart:

Well, can you tell as what is the –?

Robert F. Maxwell:

I do not know sir.

Potter Stewart:

Was state involved in the —

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.

Potter Stewart:

And this law has been —

Robert F. Maxwell:

But I do not think it would be right for me to —

Potter Stewart:

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

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.

Warren E. Burger:

Thank you, Mr. Maxwell.

Thank you gentlemen.

The case is submitted.