without prior notice or hearing the attachment of property not nominally owned by the judgment debtors. Thus we must examine whether the procedures utilized comport with the Due Process Clause of the Fourteenth Amendment.
A. The Precedent
In a series of cases concerning pre-judgment attachment, the Supreme Court defined the contours of due process requirements. The first of these cases, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), invalidated a statute permitting the garnishment of wages without notice and opportunity for hearing. In Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), the Court extended its Sniadach reasoning, finding unconstitutional Pennsylvania and Florida replevin statutes which permitted a secured seller to repossess goods by obtaining a writ from the court clerk. By a 4-3 majority the Fuentes court set forth the requirement of notice and hearing in sweeping terms, stating: "(T)he Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect."
Id. at 82, 92 S. Ct. at 1995. The holding in Fuentes was narrowed significantly two terms later in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974). Mitchell, like Fuentes, involved the seizure of property based upon allegations by a secured vendor. The statute in Mitchell, however, contained procedural safeguards not found in the statute invalidated by Fuentes. The Mitchell law required the creditor to set forth in an affidavit the specific facts entitling him to sequestration and to present that affidavit to a judge for review. An immediate post seizure hearing was also required. The Court held that these safeguards adequately protected the debtor against mistaken deprivation. The dissent, on the contrary, argued that Fuentes required a prior hearing absent extraordinary circumstances.
The final case in this line brought Fuentes back to life, albeit in weakened form. In North Georgia Finishing v. Di-Chem, 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975), the Court relied on Fuentes to invalidate a Georgia garnishment statute. The statute permitted the creditor to garnish the bank account of the debtor by filing an affidavit with the court. No provision existed for notice, opportunity for early hearing or participation by a judicial officer. Where not even the Mitchell procedures protected the debtor's interest, due process did not permit deprivation of his property by a writ of garnishment.
For assistance in reconciling these holdings, we look to the decision of the Court of Appeals for the Third Circuit in Jonnet v. Dollar Savings Bank of City of New York, 530 F.2d 1123 (3d Cir. 1976). In Jonnet our Third Circuit declared constitutionally infirm Pennsylvania foreign attachment procedures
authorizing prejudgment attachment by the prothonotary based upon an affidavit containing only conclusory allegations and offering no opportunity for prompt hearing. The court first noted that even a temporary, nonfinal deprivation of property warranted scrutiny under the Due Process Clause. Id. at 1126 citing Fuentes, 407 U.S. at 84-87, 92 S. Ct. at 1996-1997. It then adopted a balancing approach to determine what procedures were constitutionally required. Plaintiff's interests in establishing jurisdiction and restraining property for eventual payment were weighed against defendant's interest in maintaining control of his property and defending the lawsuit without the burden of attachment. After balancing these interests, the court concluded that to offer sufficient protection for a debtor, the Pennsylvania statute at a minimum must provide the following: that process be instituted by first presenting to a legally trained official for his approval a sworn document stating substantially the facts; that a procedure be established to indemnify plaintiff for wrongful attachment; that a prompt hearing after seizure be held, and that some means not prejudicial to the plaintiff's interests be available by which he can dissolve the attachment.
The balancing approach adopted by the Third Circuit in Jonnet after review of the garnishment cases foreshadowed the Supreme Court's opinion in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Although Mathews involved procedures for determining eligibility for Social Security payments, the Court described as follows the factors that should be considered in assessing whether any government procedure affords due process:
(First), the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Id. at 335, 96 S. Ct. at 903.