Roofing Wholesale Co., Inc. v. Palmer

• Decision Date: 15 November 1972
• Docket Number: No. 10937,10937
• Parties: , 65 A.L.R.3d 496 ROOFING WHOLESALE CO., INC., Petitioner, v. Wilson D. PALMER, as a Clerk of the Superior Court of Maricopa County, in and for the State of Arizona, Respondent.
• Court: Arizona Supreme Court

Page 1327

502 P.2d 1327

108 Ariz. 508, 65 A.L.R.3d 496

ROOFING WHOLESALE CO., INC., Petitioner, v. Wilson D. PALMER, as a Clerk of the Superior Court of Maricopa County, in and for the State of Arizona, Respondent.

No. 10937.

Supreme Court of Arizona, In Banc.

Nov. 15, 1972.

Rehearing Denied Jan. 2, 1973.

Jerold Kaplan and John W. Nelson, Phoenix, for petitioner.

Moise Berger, Maricopa County Atty., by William Carter, Deputy County Atty., Phoenix, for respondent.

CAMERON, Vice Chief Justice.

This is a petition for special action in the nature of mandamus in which we are asked to order the respondent, Wilson D. Palmer, Clerk of the Superior Court of Maricopa County, Arizona, to issue a writ of attachment and writ of garnishment pursuant to §§ 12--1521, 1522, and 1571 A.R.S. Because of recent developments in this filed of law and because it was a matter of general interest and importance throughout the State, we accepted jurisdiction.

The plaintiff-petitioner, Roofing Wholesale Co., Inc., filed an action against James E. Diehl, Jane Doe Diehl, dba Diehl's Construction Company, Consolidated Services, Inc., and State Automobile & Casualty Underwriters, as the result of an expressed open account contract for the direct payment of money. At the time of filing the complaint, the plaintiff-petitioner asked the Clerk of the Court to issue a writ of general attachment and writ of garnishment which the Clerk of the Court refused to issue. The petition for special action to this court resulted.

Our statutes read:

' § 12--1521. Attachment of property of defendant

'A plaintiff, at the time of filing the complaint or at any time thereafter, may in the following cases have the property of defendant attached as security for satisfaction of any judgment which may be recovered, unless defendant gives security to pay such judgment:

'1. In an action upon a contract, express or implied, for direct payment of money, where the contract is made or is payable in this state and is not fully secured by mortgage or lien upon real or personal property or pledge of personal property, or, if originally so secured, such security has, without any act of plaintiff or the person to whom the security was given, become valueless.'

And:

' § 12--1522. Affidavit for issuance of writ of attachment

'A. The clerk of the court or justice of the peace shall issue the writ of attachment upon receiving an affidavit by or on behalf of plaintiff * * *.'

The United States Supreme Court in the case of Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) held that prejudgment garnishment procedures whereby a defendant's wages are frozen in the interim between the garnishment of the wages and the determination of the lawsuit without the defendant having a chance to be heard prior to the garnishment, violate the 14th Amendment to the United States Constitution. As a result of said decision, this court was called upon to rule upon the constitutionality of our garnishment statutes in two cases:

'* * * Therefore, we hold that the procedure for garnishment of wages in this state does not measure up to the standards set forth in Sniadach, and that prior to the issuance of a prejudgment writ of garnishment of wages there must be some provision for notice to the defendant and a hearing on the validity of the plaintiff's claim.

* * *

* * *

'We emphasize, however, that our holding is limited to the prejudgment garnishment of Wages (as was the opinion of Sniadach). In this regard, Termplan maintains that the Court below went beyond the scope of the Sniadach opinion when it ruled that the procedure therein must be followed in attachments and garnishment of property other than wages. We agree, and hold that that portion of the order in question must be vacated.' Termplan Inc. v. Superior Court of Maricopa Co., 105 Ariz. 270, 272, 463 P.2d 68, 70 (1969).

And:

'Appellee urges that we declare prejudgment garnishment in this case unconstitutional as a deprivation of due process pursuant to Snidach (sic) v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). We decline to so hold. This court has previously held that the Snidach (sic) holding was limited to wages. * * *

* * *

* * *

'There exist proper grounds for distinguishing between depriving a wage earner of his present cash flow by prejudgment garnishment and impounding reserve assets of a busifness enterprise. The latter's entity rights are adequately protected by the right to replevy under § 12--1578, subsec. B, A.R.S.; the counterclaim procedures for wrongful garnishment under De Wulf v. Bissell, 83 Ariz. 68, 316 P.2d 492 (1957); and, the ultimate hearing on the merits.' First National Bank & Trust Co. v. Pomona Mach. Co., 107 Ariz. 286, 290, 486 P.2d 184, 188 (1971).

We are not alone in limiting the reach of Sniadach, supra, to wages. See American Olean Tile Company v. Zimmerman, 317 F.Supp. 150 (U.S.D.C.Hawaii 1970); Black Watch Farms, Inc. v. Jack R. Dick v. Meckler, 323 F.Supp. 100 (U.S.D.C.Conn.1971). Other courts have come to an opposite rule. See Larson v. Fetherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969); Jones Press, Inc. v. Motor Travel Service, Inc., 286 Minn. 205, 176 N.W.2d 87 (1970); Randone v. Appellate Department of Superior Court, 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13 (1971).

On 12 June 1972, the United States Supreme Court handed down its decision in the matter of Fuentes v. Shevin and Parham v. Cortese, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), in which, by a four to three decision, the Supreme Court held that the replevin laws in both cases violated the due process clause of the 14th Amendment. Four members of the court held that the due process clause of the United State Constitution gave the defendant the right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner prior to the actual seizure of the property involved. It was upon the basis of this opinion that the Federal District Court in Arizona in the case of Western Coach Corp. v. Shreve, 344 F.Supp. 1136 (D.Ariz.1972), stated, in a ruling limited to that case only, that the Arizona garnishment and attachment statute was unconstitutional even when wages were not concerned.

A reading of Fuentes v. Shevin and Parham v. Cortese, supra, makes it clear that the four judges in that opinion fully intended to apply the due process caluse of the United States Constitution to situations as are presently before the court, absent, of course, a 'contractual waiver of due process rights * * * 'voluntarily, intelligently and knowingly' made.' Fuentes, supra, 407 U.S. at 94--95, 92 S.Ct. at 2001. The petitioner, however, asserts that because two justices did not participate in this opinion the four man opinion is clearly not a majority opinion, is advisory only, and therefore not binding upon this court. Admittedly, were we convinced that the four man majority of the United States Supreme Court in Fuentes, supra, would become at least a five man majority when the two judges who did not participate in the particular case are called up to participate in a similar question, we would then be inclined to follow the decision as set down in Fuentes, supra. When, however, we have doubts that once the full court hears the case that the opinion will stand, we are reluctant to declare unconstitutional Arizona statutes based upon a decision by less than a clear majority. In this we are not without some support from the United States Supreme Court itself:

'But it does not follow, as respondent urges, that the writ should be dismissed as improvidently granted. The Moscow case is not res judicata since respondent was not a party to that suit. (citations omitted) Nor was our affirmance of the judgment in that case by an equally divided court an authoritative precedent. While it was conclusive and binding upon the parties as respects that controversy (Durant v. Essex Co., 7 Wall. 107, 19 L.Ed. 154), the lack of an agreement by a majority of the Court on the principles of law involved prevents it from being an authoritative determination for other cases. * * *.' United States v. Pink, 315 U.S. 203, 216, 62 S.Ct. 552, 558, 86 L.Ed. 796, 810 (1942).

Further, the Court of Customs and Patent Appeals has stated:

'Where courts are concerned, it has been uniformly held, so far as we can ascertain, that a clear majority of all the legally constituted members thereof shall concur or no valid judgment may be entered except such as may follow no decision.' Frischer & Co. v. Bakelite Corp., 39 F.2d 247, 255 (1930).

In the case of Federal Trade Commission v. Flotill Products, Inc., 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (1967), Mr. Justice Brennan at Footnote 7, discussed the statement from the Frischer case, supra, as follows:

'7. The authorities cited in Frischer as supporting the exception fail with one exception to do so. Four of the decisions cited dealt simply with the rule in cases where a court is equally divided in its vote. Madlem's Appeal, 103 Pa. 584 (1883); Putnam v. Rees, 12 Ohio 21 (1843); Northern R. Co. v. Concord R. Co., 50 N.H. 166 (1870); Ayres v. Bensley, 32 Cal. 632 (1867). Another, in addition to dealing with the question of an equally divided court, involved a constitutional provision for the concurrence of a majority of the judges Sitting. Mugge v. Tate, Jones & Co., 51 Fla. 255, 41 So. 603 (1906). The others are likewise not in point. Deglow v. Kruse, 57 Ohio St. 434, 49 N.E. 477 (1898) (two of three constitutes quorum, both must concur); Denver & R.G.R. Co. v. Burchard, 35 Colo. 539, 558, 86 P. 749, 755 (1906) (constitutional requirement that three of seven judges concur). The whole of the court's discussion in the only decision in point, Johnson v. State ex rel. Brannon, 1 Ga. 271 (1846), was '(t)he law, organizing the Inferior Court, constitutes five justices the court. We hold the concurrence of a...