Rogoski v. Hammond

• Decision Date: 06 August 1973
• Docket Number: No. 1858--I,1858--I
• Citation: 513 P.2d 285,9 Wn.App. 500
• Parties: Juanita ROGOSKI, Respondent, v. Lucille D. HAMMOND, a/k/a Lucille Shanahan, Petitioner,
• Court: Washington Court of Appeals

Page 500

9 Wn.App. 500

513 P.2d 285

Juanita ROGOSKI, Respondent, v. Lucille D. HAMMOND, a/k/a Lucille Shanahan, Petitioner,

No. 1858--I.

Court of Appeals of Washington, Division 1, Panel Two.

Aug. 6, 1973.

Jonson & Li, P.S., Chi-Dooh Li, Seattle, for petitioner.

Young & Dieson, James R. Young, Redmond, for respondent.

HOROWITZ, Judge.

The basic question here is whether due process objections to prejudgment attachment based on RCW 7.12.020(10) are overcome by the preliminary use of a show cause hearing procedure under RCW 2.28.150.

On July 14, 1972, plaintiff Rogoski commenced an action against defendant Hammond for $3,000 in unpaid rent allegedly owing under a written lease, plus attorney's fees. Concurrently, plaintiff obtained an order directing defendant to show cause within 8 days why a writ of attachment should not issue directing the King County sheriff to 'attach and safely keep all the property of the said Defendant within your County not exempt from execution, or so much thereof as may be sufficient to satisfy said Plaintiff's demand . . .'

Defendant served and filed an answer. It denied any rent was owing and contained a counterclaim for damages for alleged breach of the lease provisions requiring plaintiff to provide heat and off-street parking to the leased premises. The hearing on the show cause order was held on affidavits filed by each, each party appearing by retained counsel. Plaintiff's affidavit showed compliance with RCW 7.12 to justify the issuance of the writ of attachment. Defendant's affidavit denied plaintiff's claim was valid and described her affirmative defenses, setoff and counterclaim to plaintiff's claim. The trial court, on July 28, 1972, entered an order authorizing the writ of attachment to issue. On September 27, 1972, this court granted defendant a writ of certiorari to review the trial court's order.

Defendant contends the order of July 28, 1972 is erroneous because RCW 7.12.020(10) ¹ violates the due process clauses of the state and federal constitutions. She particularly relies on Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Seattle Credit Bureau v. Hibbitt, 7 Wash.App. 219, 499 P.2d 92 (1972), and Lucas v. Stapp, 6 Wash.App. 971, 497 P.2d 250 (1972). Defendant argues that prejudgment attachment authorized by RCW 7.12 violates due process because it contains no provision for notice and judicial hearing before the writ of attachment issues to first determine whether the plaintiff's creditor's claim is at least probably valid. Plaintiff contends RCW 2.28.150 authorizes use of the required notice and hearing and that the show cause hearing below meets the due process objections raised.

Two basic questions are presented: (1) whether RCW 7.12.020(10) and RCW 2.28.150 together provide for the constitutionally-required notice and hearing, and (2) whether the hearing held below conforms to due process requirements of a prejudgment attachment hearing.

We need not express an opinion on the ultimate impact of the Sniadach and Fuentes cases. Recent law review writers discuss this matter at length. ² We likewise need not determine, under the facts here, whether prejudgment attachment on grounds other than RCW 7.12.020(10) mandatorily requires prior notice and hearing on the probable validity of a creditor's claim.

RCW 7.12.020, in dealing with attachments, provides that

before any such writ of attachment shall issue, the plaintiff, or someone in his behalf, shall make and file with (the clerk of the court) an affidavit showing that the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all just credits and offsets), and that the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of the defendant, and . . .

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(10) That the object for which the action is brought is to recover on a contract, express or implied.

RCW 7.12 makes no express provision for a prejudgment attachment hearing. Without such a hearing, absent the 'extraordinary situation' exception referred to in Fuentes and Sniadach, the effect of these decisions would be to render RCW 7.12.020(10) violative of due process. See also Randone v. Appellate Dept. of Sup. Ct., 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13 (1971); Etheredge v. Bradley, 502 P.2d 146 (Alaska 1972).

RCW 2.28.150 provides, however:

When jurisdiction is, by the Constitution of this state, or by statute, conferred on a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most comformable to the spirit of the laws.

The statute has been applied in other contexts. State ex rel. Kurtz v. Pratt, 45 Wash.2d 151, 273 P.2d 516 (1954); State ex rel. Pemberton v. Superior Court, 196 Wash. 468, 83 P.2d 345 (1938); State ex rel. McAvoy v. Gilliam, 60 Wash. 420, 111 P. 401 (1910); Moore v. Gilmore, 16 Wash. 123, 47 P. 239 (1896); Hays v. Merchants' Bank, 10 Wash. 573, 39 P. 98 (1895). See also O'Connor v. Matzdorff, 76 Wash.2d 589, 458 P.2d 154 (1969). In three cases distinguishable from the case here, the court has refused to hold the statute applicable. Davis v. Woollen, 191 Wash. 379, 71 P.2d 172 (1937); State ex rel. Hopman v. Superior Court, 88 Wash. 612, 153 P. 315 (1915); State ex rel. Fugita v. Milroy, 71 Wash. 592, 129 P. 384 (1913).

RCW 2.28.150 is broad enough to permit a motion or show cause procedure that will enable the court upon notice and hearing to determine whether the claim 'to recover on a contract, express or implied,' is at least probably valid so as to permit the writ of attachment to issue. Nothing in the statute requires that a court take a narrow and grudging view of its application if by doing otherwise RCW 7.12 is saved from due process invalidity. A statute, in case of doubt, will be construed in the manner that will render it constitutional and hence effective, rather than unconstitutional. In re Elliott, 74 Wash.2d 600, 446 P.2d 347 (1968). As stated in Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 641, 79 S.Ct. 455, 457, 3 L.Ed.2d 562 (1959):

(T)he state court's interpretation of the statute or evaluation of its validity under the state constitution may obviate any need to consider its validity under the Federal Constitution . . .

See also Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). RCW 7.12 has its place in a credit economy such as ours. As Fuentes puts it:

We do not question the power of a State to seize goods before a final judgment in order to protect the security interests of creditors so long as those creditors have tested their claim to the goods through the process of a fair prior hearing.

407 U.S. at 96, 92 S.Ct. at 2002. A show cause proceeding is a 'suitable process or mode of proceeding . . . which may appear most conformable to the spirit of the laws.' RCW 2.28.150.

We must next determine the essential ingredients of a prejudgment attachment notice and hearing required by due process. Fuentes points out:

Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, . . . it is axiomatic that the hearing must provide a real test. '(D)ue process is afforded only by the kinds of 'notice' and 'hearing' that 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 . . ..' Sniadach v. Family Finance Corp., Supra, 395 U.S. at 343, 89 S.Ct. 1820 (Harlan, J., concurring). See Bell v. Burson, Supra, 402 U.S. 535, at 540, 91 S.Ct. 1586, 29 L.Ed.2d 90; Goldberg v. Kelly, Supra, 397 U.S. 254 at 267, 90 S.Ct. 1011, 25 L.Ed.2d 287.

407 U.S. at 97, 92 S.Ct. at 2002. To accomplish the purpose of the hearing, the form of the hearing must be

'appropriate to the nature of the case,' . . . (and) whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect.

407 U.S. at 82, 92 S.Ct. at 1995.

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), in applying the rationale of Sniadach to an administrative hearing to determine the validity of the grounds for termination of welfare benefits prior to a hearing on the merits, states:

(T)he pre-termination hearing need not take the form of a judicial or quasi-judicial trial. . . . (T)he pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits.

397 U.S. at 266--267, 90 S.Ct. at 1020.

The rationale of prejudgment garnishment and replevin cases from the Supreme Court of the United States, and other cases as well, is substantially the same with regard to the nature of the due process requirements of notice and hearing. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Fuentes v. Shevin, Supra; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, Supra; Sniadach v. Family Fin. Corp., Supra. The minimum requirements are these: (1) timely and adequate notice of hearing on the probable validity of the creditor's claim which states the basis for the claim and allows the debtor adequate time to prepare for the hearing; (2) an independent and impartial decision maker; (3) the right to appear personally at the hearing, with or without retained counsel; (4) the right at the hearing to confront and cross-examine and adverse witness and to present evidence and oral argument in...