Johnson v. GLENN'S FURNITURE COMPANY, INC.
Opinion
In this class action, the plaintiff seeks injunctive and declaratory relief against the enforcement of foreclosure proceedings under appropriate Georgia law. A three-judge court was convened under 28 U.S.C. §§ 2281 and 2284. At the hearing on March 6, 1972, the parties stipulated all necessary facts and, after argument, the court issued a stay of all proceedings. pending the decision of the United States Supreme Court in Fuentes v. Faircloth, 317 F.Supp. 954 (S.D.Fla. 1970) (Three-Judge Court), deemed to be controlling. That decision having issued sub nom. Fuentes et al. v. Shevin, Attorney General of Florida, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, on June 12, 1972, the stay was lifted and all parties granted additional time to submit briefs; and the case is again before the court for ruling.
A reading of Fuentes indicates that the procedural due process right established therein is “an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another.” At 80, 92 S.Ct. at 1994. Under the decision, the only task left for this court is to examine the state statutes under attack and to determine where they contravene this principle. In those instances where they do, they must fail.
An examination of the Georgia statutes challenged here, which govern the foreclosure against personal property under chattel mortgages, conditional sales contracts and other title retention contracts, 1 reveals that the scheme is es *58 sentially the same as that in Florida. They provide, of course, for the filing of an affidavit and bond by the creditor and the issuance of execution upon foreclosure (§ 67-701), the seizure of the goods without prior notice, and eventual sale (§ 67-703), unless the sale is arrested by an affidavit of illegality (§ 67-801) and the posting of a replevy bond in double the amount of the value of the property (§ 67-803). As Fuentes holds, it is the seizure under § 67-703 without prior hearing which is condemned and insofar as that section so provides, it is clearly unconstitutional.
However, as the court reads Fuentes, it does not prohibit the requirement of a bond as a pre-requisite to continued possession of the property by a debtor after a due process hearing which terminates in favor of the creditor. Thus it is conceivable that a constitutional scheme can be devised which allows the commencement of foreclosure' under § 67-701, the provisions for notice of hearing “at a meaningful time” before seizure, and the current provisions for replevy under §§ 67-801 and 67-803. In this respect, we find nothing in Fuentes which denies a just creditor protection through a bond against the deterioration of his security pending final judgment once the debtor’s default has been proven in a fair hearing. In those cases where the posting of bond is argued to be an impediment to due process it is in those instances where the bond was a prerequisite to the *59 hearing or “day in court” itself. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56 (1971).
The particular remedy to be fashioned is, of course, a matter for the state legislature. As stated by the Supreme Court, “Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing in preventing seizures of goods where the party seeking the writ has little probability of succeeding on the merits of the dispute.” At 97 n. 33, of 407 U.S., at 2002 n. 33 of 92 S.Ct. Thus, “the requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person’s possessions. But the fair process of decision-making that it guarantees works, by itself, to protect against arbitrary deprivation of property.” At 81, 92 S.Ct. at 1994.
In the context of the proceedings here, it does not appear that §§ 67-701, 67-801, and 67-803 offended the principles of Fuentes. Of course, they are of little practical value standing alone, but there is no need to declare them unconstitutional unless plainly defective. The General Assembly of Georgia may or may not see fit to repeal them in connection with its corrective action. 2 In the exercise of judicial restraint it is axiomatic that no statute is adjudged unconstitutional except where absolutely necessary to dispose of the case. Ashwander v. TVA, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1946) ; Sanks v. Georgia, 401 U.S. 144, 91 S.Ct. 593, 27 L.Ed.2d 741 (1971); Belanger v. Great American Indemnity Co. of New York, 188 F.2d 196 (5th Cir. 1951).
Accordingly, it is adjudged and declared by the court that Georgia Code § 67-703 is unconstitutional and therefore void and of no effect and it is further ordered that the defendants and all others acting in concert or on their behalf be and they are hereby enjoined from proceeding thereunder in any fashion.
It is so ordered.
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372 F. Supp. 56 (Johnson v. GLENN'S FURNITURE COMPANY, INC.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.