U.S. Supreme Court Fuentes v. Shevin, 407 U.S.
67 (1972) Fuentes v. Shevin No. 70-5039 Argued November 9,
1971 Decided June 12, 1972 407 U.S.
67 ast|>* 407 U.S.
67 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA Syllabus Appellants, most of whom were purchasers of household goods
under conditional sales contracts, challenge the constitutionality
of prejudgment replevin provisions of Florida law (in No. 70-5039)
and Pennsylvania law (in No. 70-5138). These provisions permit a
private party, without a hearing or prior notice to the other
party, to obtain a prejudgment writ of replevin through a summary
process of ex parte application to a court clerk, upon the
posting of a bond for double the value of the property to be
seized. The sheriff is then required to execute the writ by seizing
the property. Under the Florida statute, the officer seizing the
property must keep it for three days. During that period, the
defendant may reclaim possession by posting his own security bond
for double the property's value, in default of which the property
is transferred to the applicant for the writ, pending a final
judgment in the underlying repossession action. In Pennsylvania,
the applicant need not initiate a repossession action or allege (as
Florida requires) legal entitlement to the property, it being
sufficient that he file an "affidavit of the value of the
property"; and to secure a post-seizure hearing, the party losing
the property through replevin must himself initiate a suit to
recover the property. He may also post his own counterbond within
three days of the seizure to regain possession. Included in the
printed form sales contracts that appellants signed were provisions
for the sellers' repossession of the merchandise on the buyers'
default. Three-judge District Courts in both cases upheld the
constitutionality of the challenged replevin provisions. Held: 1. The Florida and Pennsylvania replevin provisions are invalid
under the Fourteenth Amendment since they work a deprivation of
property without due process of law by denying the right to a Page 407 U. S. 68 prior opportunity to be heard before chattels are taken from the
possessor. Pp. 407 U. S.
80 -93.

															(a) Procedural due process in the context of these cases
requires 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, and the minimal deterrent effect of the
bond requirement against unfounded applications for a writ
constitutes no substitute for a pre-seizure hearing. Pp. 407 U. S.
80 -84.

															(b) From the standpoint of the application of the Due Process
Clause, it is immaterial that the deprivation may be temporary and
nonfinal during the three-day post-seizure period. Pp. 407 U. S.
84 -86.

															(c) The possessory interest of appellants, who had made
substantial installment payments, was sufficient for them to invoke
procedural due process safeguards notwithstanding their lack of
full title to the replevied goods. Pp. 407 U. S.
86 -87.

															(d) The District Courts erred in rejecting appellants'
constitutional claim on the ground that the household goods seized
were not items of "necessity," and therefore did not require due
process protection, as the Fourteenth Amendment imposes no such
limitation. Pp. 407 U. S.
88 -90.

															(e) The broadly drawn provisions here involved serve no such
important a state interest as might justify summary seizure. Pp. 407 U. S.
90 -93.

															2. The contract provisions for repossession by the seller on the
buyer's default did not amount to a waiver of the appellants'
procedural due process rights, those provisions neither dispensing
with a prior hearing nor indicating the procedure by which
repossession was to be achieved. D. H. Overmyer Co. v. Frick
Co., 405 U. S. 174 ,
distinguished. Pp. 407 U. S.
94 -96.

															No. 70-5039, 317 F.
Supp. 954 , and No. 70-5138, 326 F.
Supp. 127 , vacated and remanded.

															STEWART, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. WHITE, J., filed a
dissenting opinion, in which BURGER, C.J., and BLACKMUN, J.,
joined, post, p. 407 U. S. 97 .
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the cases. Page 407 U. S. 69 MR. JUSTICE STEWART delivered the opinion of the Court.

															We here review the decisions of two three-judge federal District
Courts that upheld the constitutionality of Florida and
Pennsylvania laws authorizing the summary seizure of goods or
chattels in a person's possession under a writ of replevin. Both
statutes provide for the issuance of writs ordering state agents to
seize a person's possessions, simply upon the ex parte application of any other person who claims a right to them and
posts a Page 407 U. S. 70 security bond. Neither statute provides for notice to be given
to the possessor of the property, and neither statute gives the
possessor an opportunity to challenge the seizure at any kind of
prior hearing. The question is whether these statutory procedures
violate the Fourteenth Amendment's guarantee that no State shall
deprive any person of property without due process of law. I The appellant in No. 5039, Margarita Fuentes, is a resident of
Florida. She purchased a gas stove and service policy from the
Firestone Tire and Rubber Co. (Firestone) under a conditional sales
contract calling for monthly payments over a period of time. A few
months later, she purchased a stereophonic phonograph from the same
company under the same sort of contract. The total cost of the
stove and stereo was about $500, plus an additional financing
charge of over $100. Under the contracts, Firestone retained title
to the merchandise, but Mrs. Fuentes was entitled to possession
unless and until she should default on her installment
payments.

															For more than a year, Mrs. Fuentes made her installment
payments. But then, with only about $200 remaining to be paid, a
dispute developed between her and Firestone over the servicing of
the stove. Firestone instituted an action in a small claims court
for repossession of both the stove and the stereo, claiming that
Mrs. Fuentes had refused to make her remaining payments.
Simultaneously with the filing of that action and before Mrs.
Fuentes had even received a summons to answer its complaint,
Firestone obtained a writ of replevin ordering a sheriff to seize
the disputed goods at once.

															In conformance with Florida procedure, [ Footnote 1 ] Firestone Page 407 U. S. 71 had only to fill in the blanks on the appropriate form documents
and submit them to the clerk of the small claims court. The clerk
signed and stamped the documents and issued a writ of replevin.
Later the same day, a local deputy sheriff and an agent of
Firestone went to Mrs. Fuentes' home and seized the stove and
stereo.

															Shortly thereafter, Mrs. Fuentes instituted the present action
in a federal district court, challenging the constitutionality of
the Florida prejudgment replevin procedures under the Due Process
Clause of the Fourteenth Amendment. [ Footnote 2 ] She sought declaratory and injunctive relief
against continued enforcement of the procedural provisions of the
state statutes that authorize prejudgment replevin. [ Footnote 3 ]

															The appellants in No. 5138 filed a very similar action in a
federal district court in Pennsylvania, challenging the
constitutionality of that State's prejudgment replevin process.
Like Mrs. Fuentes, they had had possessions seized under writs of
replevin. Three of the appellants had purchased personal property
-- a bed, a table, and other household goods -- under installment
sales contracts like the one signed by Mrs. Fuentes, and the
sellers of the property had obtained and executed summary writs of
replevin, claiming that the appellants had fallen behind in their
installment payments. Page 407 U. S. 72 The experience of the fourth appellant, Rosa Washington, had
been more bizarre. She had been divorced from a local deputy
sheriff, and was engaged in a dispute with him over the custody of
their son. Her former husband, being familiar with the routine
forms used in the replevin process, had obtained a writ that
ordered the seizure of the boy's clothes, furniture, and toys.
[ Footnote 4 ]

															In both No. 5039 and No. 5138, three-judge District Courts were
convened to consider the appellants' challenges to the
constitutional validity of the Florida and Pennsylvania statutes.
The courts in both cases upheld the constitutionality of the
statutes. Fuentes v. Faircloth, 317 F.
Supp. 954 (SD Fla); Epps v. Cortese, 326 F.
Supp. 127 (ED Pa.). [ Footnote
5 ] We noted probable jurisdiction of both appeals. 401 U.S.
906; 402 U.S. 994.. Page 407 U. S. 73 II Under the Florida statute challenged here, [ Footnote 6 ] "[a]ny person whose goods or chattels
are wrongfully detained by any other person . . . may have a writ
of replevin to recover them. . . ." Fla.Stat.Ann. § 78.01 (Supp.
1972-1973). There is no requirement that the applicant make a
convincing showing before the seizure Page 407 U. S. 74 that the goods are, in fact, "wrongfully detained." Rather,
Florida law automatically relies on the bare assertion of the party
seeking the writ that he is entitled to one and allows a court
clerk to issue the writ summarily. It requires only that the
applicant file a complaint, initiating a court action for
repossession and reciting in conclusory fashion that he is
"lawfully entitled to the possession" of the property, and that he
file a security bond

															"in at least double the value of the property to be replevied
conditioned that plaintiff will prosecute his action to effect and
without delay and that, if defendant recovers judgment against him
in the action, he will return the property, if return thereof is
adjudged, and will pay defendant all sums of money recovered
against plaintiff by defendant in the action."

															Fla.Stat.Ann. § 78.07 (Supp. 1972-1973). Page 407 U. S. 75 On the sole basis of the complaint and bond, a writ is
issued

															"command[ing] the officer to whom it may be directed to replevy
the goods and chattels in possession of defendant . . . and to
summon the defendant to answer the complaint."

															Fla.Stat.Ann. § 78.08 (Supp. 1972-1973). If the goods are "in
any dwelling house or other building or enclosure," the officer is
required to demand their delivery; but, if they are not delivered,
"he shall cause such house, building or enclosure to be broken open
and shall make replevin according to the writ. . . ." Fla.Stat.Ann.
§ 78.10 (Supp. 1972-1973).

															Thus, at the same moment that the defendant receives the
complaint seeking repossession of property through court action,
the property is seized from him. He is provided no prior notice and
allowed no opportunity whatever to challenge the issuance of the
writ. After the property has been seized, he will eventually have
an opportunity for a hearing, as the defendant in the trial of the
court action for repossession, which the plaintiff is required to
pursue. And he is also not wholly without recourse in the meantime.
For, under the Florida statute, the officer who seizes the property
must keep it for three days, and, during that period, the defendant
may reclaim possession of the property by posting his own security
bond in double its value. But if he does not post such a bond, the
property is transferred to the party who sought the writ, pending a
final judgment in the underlying action for repossession.
Fla.Stat.Ann. § 78.13 (Supp. 1972-1973).

															The Pennsylvania law [ Footnote
7 ] differs, though not in its essential nature, from that of
Florida. As in Florida, Page 407 U. S. 76 a private party may obtain a prejudgment writ of replevin
through a summary process of ex parte application to a
prothonotary. As in Florida, the party seeking Page 407 U. S. 77 the writ may simply post with his application a bond in double
the value of the property to be seized. Pa.Rule Civ.Proc. 1073(a).
There is no opportunity for a prior hearing, and no prior notice to
the other party. On this basis, a sheriff is required to execute
the writ by seizing the specified property. Unlike the Florida
statute, however, the Pennsylvania law does not require that there
ever be opportunity for a hearing on the merits of the conflicting
claims to possession of the replevied property. The party seeking
the writ is not obliged to initiate a court action for
repossession. [ Footnote 8 ]
Indeed, Page 407 U. S. 78 he need not even formally allege that he is lawfully entitled to
the property. The most that is required is that he file an
"affidavit of the value of the property to be replevied." Pa.Rule
Civ.Proc. 1073(a). If the party who loses property through replevin
seizure is to get even a post-seizure hearing, he must initiate a
lawsuit himself. [ Footnote 9 ]
He may also, as under Florida law, post his own counterbond within
three days after the seizure to regain possession. Pa.Rule
Civ.Proc. 1076. III Although these prejudgment replevin statutes are descended from
the common law replevin action of six centuries ago, they bear very
little resemblance to it. Replevin at common law was an action for
the return of specific goods wrongfully taken or "distrained."
Typically, it was used after a landlord (the "distrainor") had
seized possessions from a tenant (the "distrainee") to satisfy a
debt allegedly owed. If the tenant then instituted a replevin
action and posted security, the landlord could be ordered to return
the property at Page 407 U. S. 79 once, pending a final judgment in the underlying action.
[ Footnote 10 ] However, this
prejudgment replevin of goods at common law did not follow from an
entirely ex parte process of pleading by the distrainee.
For

															"[t]he distrainor could always stop the action of replevin by
claiming to be the owner of the goods; and as this claim was often
made merely to delay the proceedings, the writ de propriatate
probanda was devised early in the fourteenth century, which
enabled the sheriff to determine summarily the question of
ownership. If the question of ownership was determined against the
distrainor, the goods were delivered back to the distrainee
[pending final judgment]."

															3 W. Holdsworth, History of English Law 284 (1927).

															Prejudgment replevin statutes like those of Florida and
Pennsylvania are derived from this ancient possessory action in
that they authorize the seizure of property before a final
judgment. But the similarity ends there. As in the present cases,
such statutes are most commonly used by creditors to seize goods
allegedly wrongfully detained -- not wrongfully taken -- by
debtors. At common law, if a creditor wished to invoke state power
to recover goods wrongfully detained, he had to proceed through the
action of debt or detinue. [ Footnote 11 ] These actions, however, did not provide for
a return of property before final judgment. [ Footnote 12 ] And, more importantly, on the
occasions when the common law did allow prejudgment seizure by
state power, it provided some kind Page 407 U. S. 80 of notice and opportunity to be heard to the party then in
possession of the property, and a state official made at least a
summary determination of the relative rights of the disputing
parties before stepping into the dispute and taking goods from one
of them. IV For more than a century, the central meaning of procedural due
process has been clear: "Parties whose rights are to be affected
are entitled to be heard; and in order that they may enjoy that
right, they must first be notified." Baldwin v.
Hale , 1 Wall. 223, 68 U. S. 233 . See Windsor v. McVeigh, 93 U. S. 274 ; Hovey v. Elliott, 167 U. S. 409 ; Grannis v. Ordean, 234 U. S. 385 . It
is equally fundamental that the right to notice and an opportunity
to be heard "must be granted at a meaningful time and in a
meaningful manner." Armstrong v. Manzo, 380 U.
S. 545 , 380 U. S.
552 .

															The primary question in the present cases is whether these state
statutes are constitutionally defective in failing to provide for
hearings "at a meaningful time." The Florida replevin process
guarantees an opportunity for a hearing after the seizure of goods,
and the Pennsylvania process allows a post-seizure hearing if the
aggrieved party shoulders the burden of initiating one. But neither
the Florida nor the Pennsylvania statute provides for notice or an
opportunity to be heard before the seizure. The issue is whether
procedural due process in the context of these cases requires 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.

															The constitutional right to be heard is a basic aspect of the
duty of government to follow a fair process of decisionmaking when
it acts to deprive a person of his possessions. The purpose of this
requirement is not Page 407 U. S. 81 only to ensure abstract fair play to the individual. Its
purpose, more particularly, is to protect his use and possession of
property from arbitrary encroachment -- to minimize substantively
unfair or mistaken deprivations of property, a danger that is
especially great when the State seizes goods simply upon the
application of and for the benefit of a private party. So viewed,
the prohibition against the deprivation of property without due
process of law reflects the high value, embedded in our
constitutional and political history, that we place on a person's
right to enjoy what is his, free of governmental interference. See Lynch v. Household Finance Corp., 405 U.
S. 538 , 405 U. S.
552 .

															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 decisionmaking that it guarantees works, by
itself, to protect against arbitrary deprivation of property. For
when a person has an opportunity to speak up in his own defense,
and when the State must listen to what he has to say, substantively
unfair and simply mistaken deprivations of property interests can
be prevented. It has long been recognized that

															"fairness can rarely be obtained by secret, one-sided
determination of facts decisive of rights. . . . [And n]o better
instrument has been devised for arriving at truth than to give a
person in jeopardy of serious loss notice of the case against him
and opportunity to meet it." Joint Ant-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S.
170 -172 (Frankfurter, J., concurring).

															If the right to notice and a hearing is to serve its full
purpose, then, it is clear that it must be granted at a time when
the deprivation can still be prevented. At a later hearing, an
individual's possessions can be returned to him if they were
unfairly or mistakenly taken in the first place. Damages may even
be Page 407 U. S. 82 awarded to him for the wrongful deprivation. But no later
hearing and no damage award can undo the fact that the arbitrary
taking that was subject to the right of procedural due process has
already occurred. "This Court has not . . . embraced the general
proposition that a wrong may be done if it can be undone." Stanley v. Illinois, 405 U. S. 645 , 405 U. S.
647 .

															This is no new principle of constitutional law. The right to a
prior hearing has long been recognized by this Court under the
Fourteenth and Fifth Amendments. Although the Court has held that
due process tolerates variances in the form of a hearing
"appropriate to the nature of the case," Mullane v. Central
Hanover Tr. Co., 339 U. S. 306 , 339 U. S. 313 ,
and "depending upon the importance of the interests involved and
the nature of the subsequent proceedings [if any]," Boddie v.
Connecticut, 401 U. S. 371 , 401 U. S. 378 ,
the Court has traditionally insisted that, whatever its form,
opportunity for that hearing must be provided before the
deprivation at issue takes effect. E.g., Bell v. Burson, 402 U. S. 535 , 402 U. S. 542 ; Wisconsin v. Constantineau, 400 U.
S. 433 , 400 U. S. 437 ; Goldberg v. Kelly, 397 U. S. 254 ; Armstrong v. Manzo, 380 U.S. at 380 U. S. 551 ; Mullane v. Central Hanover Tr. Co., supra, at 339 U. S. 313 ; Opp Cotton Mills v. Administrator, 312 U.
S. 126 , 312 U. S.
152 -153; United States v. Illinois Central R.
Co., 291 U. S. 457 , 291 U. S. 463 ; Londoner v. City & County of Denver, 210 U.
S. 373 , 210 U. S.
385 -386. See In re Ruffalo, 390 U.
S. 544 , 390 U. S.
550 -551.

															"That the hearing required by due process is subject to waiver,
and is not fixed in form does not affect its root requirement that
an individual be given an opportunity for a hearing before he is
deprived of any significant property interest, except for
extraordinary situations where some valid governmental interest is
at stake that justifies postponing the hearing until after the
event." Boddie v. Connecticut, supra, at 401 U. S.
379 -379 (emphasis in original). Page 407 U. S. 83 The Florida and Pennsylvania prejudgment replevin statutes fly
in the face of this principle. To be sure, the requirements that a
party seeking a writ must first post a bond, allege conclusorily
that he is entitled to specific goods, and open himself to possible
liability in damages if he is wrong, serve to deter wholly
unfounded applications for a writ. But those requirements are
hardly a substitute for a prior hearing, for they test no more than
the strength of the applicant's own belief in his rights. [ Footnote 13 ] Since his private gain
is at stake, the danger is all too great that his confidence in his
cause will be misplaced. Lawyers and judges are familiar with the
phenomenon of a party mistakenly but firmly convinced that his view
of the facts and law will prevail, and therefore quite willing to
risk the costs of litigation. Because of the understandable,
self-interested fallibility of litigants, a court does not decide a
dispute until it has had an opportunity to hear both sides -- and
does not generally take even tentative action until it has itself
examined the support for the plaintiff's position. The Florida and
Pennsylvania statutes do not even require the official issuing a
writ of replevin to do that much.

															The minimal deterrent effect of a bond requirement is, in a
practical sense, no substitute for an informed evaluation by a
neutral official. More specifically, as a matter of constitutional
principle, it is no replacement for the right to a prior hearing
that is the only truly effective safeguard against arbitrary
deprivation of property. While the existence of these other,
less Page 407 U. S. 84 effective, safeguards may be among the considerations that
affect the form of hearing demanded by due process, they are far
from enough by themselves to obviate the right to a prior hearing
of some kind. V The right to a prior hearing, of course, attaches only to the
deprivation of an interest encompassed within the Fourteenth
Amendment's protection. In the present cases, the Florida and
Pennsylvania statutes were applied to replevy chattels in the
appellants' possession. The replevin was not cast as a final
judgment; most, if not all, of the appellants lacked full title to
the chattels; and their claim even to continued possession was a
matter in dispute. Moreover, the chattels at stake were nothing
more than an assortment of household goods. Nonetheless, it is
clear that the appellants were deprived of possessory interests in
those chattels that were within the protection of the Fourteenth
Amendment. A A deprivation of a person's possessions under a prejudgment writ
of replevin, at least in theory, may be only temporary. The Florida
and Pennsylvania statutes do not require a person to wait until a
post-seizure hearing and final judgment to recover what has been
replevied. Within three days after the seizure, the statutes allow
him to recover the goods if he, in return, surrenders other
property -- a payment necessary to secure a bond in double the
value of the goods seized from him. [ Footnote 14 ] But it is now Page 407 U. S. 85 well settled that a temporary, nonfinal deprivation of property
is nonetheless a "deprivation" in the terms of the Fourteenth
Amendment. Sniadach v. Family Finance Corp., 395 U.
S. 337 ; Bell v. Burson, 402 U.
S. 535 . Both Sniadach and Bell involved takings of property pending a final judgment in an
underlying dispute. In both cases, the challenged statutes included
recovery provisions, allowing the defendants to post security to
quickly regain the property taken from them. [ Footnote 15 ] Yet the Court firmly held that
these were deprivations of property that had to be preceded by a
fair hearing.

															The present cases are no different. When officials of Florida or
Pennsylvania seize one piece of property from a person's possession
and then agree to return it if he surrenders another, they deprive
him of property whether or not he has the funds, the knowledge, and
the time needed to take advantage of the recovery provision. Page 407 U. S. 86 The Fourteenth Amendment draws no bright lines around three-day,
10-day or 5-day deprivations of property. Any significant taking of
property by the State is within the purview of the Due Process
Clause. While the length and consequent severity of a deprivation
may be another factor to weigh in determining the appropriate form
of hearing, it is not decisive of the basic right to a prior
hearing of some kind. B The appellants who signed conditional sales contracts lacked
full legal title to the replevied goods. The Fourteenth Amendment's
protection of "property," however, has never been interpreted to
safeguard only the rights of undisputed ownership. Rather, it has
been read broadly to extend protection to "any significant property
interest," Boddie v. Connecticut, 401 U.S. at 401 U. S. 379 ,
including statutory entitlements. See Bell v. Burson, 402
U.S. at 402 U. S. 539 ; Goldberg v. Kelly, 397 U.S. at 397 U. S.
262 .

															The appellants were deprived of such an interest in the
replevied goods -- the interest in continued possession and use of
the goods. See Sniadach v. Family Finance Corp., 395 U.S.
at 395 U. S. 342 (Harlan, J., concurring). They had acquired this interest under the
conditional sales contracts that entitled them to possession and
use of the chattels before transfer of title. In exchange for
immediate possession, the appellants had agreed to pay a major
financing charge beyond the basic price of the merchandise.
Moreover, by the time the goods were summarily repossessed, they
had made substantial installment payments. Clearly, their
possessory interest in the goods, dearly bought and protected by
contract, [ Footnote 16 ] Page 407 U. S. 87 was sufficient to invoke the protection of the Due Process
Clause.

															Their ultimate right to continued possession was, of course, in
dispute. If it were shown at a hearing that the appellants had
defaulted on their contractual obligations, it might well be that
the sellers of the goods would be entitled to repossession. But
even assuming that the appellants had fallen behind in their
installment payments, and that they had no other valid defenses,
[ Footnote 17 ] that is
immaterial here. The right to be heard does not depend upon an
advance showing that one will surely prevail at the hearing.

															"To one who protests against the taking of his property without
due process of law, it is no answer to say that, in his particular
case, due process of law would have led to the same result because
he had no adequate defense upon the merits." Coe v. Armour Fertilizer Works, 237 U.
S. 413 , 237 U. S. 424 .
It is enough to invoke the procedural safeguards of the Fourteenth
Amendment that a significant property interest is at stake,
whatever the ultimate outcome of a hearing on the contractual right
to continued possession and use of the goods. [ Footnote 18 ] Page 407 U. S. 88 C Nevertheless, the District Courts rejected the appellants'
constitutional claim on the ground that the goods seized from them
-- a stove, a stereo, a table, a bed, and so forth -- were not
deserving of due process protection, since they were not absolute
necessities of life. The courts based this holding on a very narrow
reading of Sniadach v. Family Finance Corp., supra, and Goldberg v. Kelly, supra, in which this Court held that
the Constitution requires a hearing before prejudgment wage
garnishment and before the termination of certain welfare benefits.
They reasoned that Sniadach and Goldberg, as a
matter of constitutional principle, established no more than that a
prior hearing is required with respect to the deprivation of such
basically "necessary" items as wages and welfare benefits.

															This reading of Sniadach and Goldberg reflects
the premise that those cases marked a radical departure from
established principles of procedural due process. They did not.
Both decisions were in the mainstream of past cases, having little
or nothing to do with the absolute "necessities" of life, but
establishing that due process requires an opportunity for a hearing
before a deprivation of property takes effect. [ Footnote 19 ] E.g., Opp Cotton Mills v.
Administrator, 312 U.S. at 312 U. S.
152 -153; United States v. Illinois Central R.
Co., 291 U.S. at 291 U. S. 463 ; Southern R. Co. v. Virginia, 290 U.
S. 190 ; Londoner v. City & County of
Denver, 210 U. S. 373 ; Central of Georgia v. Wright, 207 U.
S. 127 ; Security
Trust Page 407 U. S. 89 Co. v. Lexington, 203 U. S. 323 ; Hibben v. Smith, 191 U. S. 310 ; Glidden v. Harrington, 189 U. S. 255 . In
none of those cases did the Court hold that this most basic due
process requirement is limited to the protection of only a few
types of property interests. While Sniadach and Goldberg emphasized the special importance of wages and
welfare benefits, they did not convert that emphasis into a new and
more limited constitutional doctrine. [ Footnote 20 ]

															Nor did they carve out a rule of "necessity" for the sort of
nonfinal deprivations of property that they involved. That was made
clear in Bell v. Burson, 402 U. S. 535 ,
holding that there must be an opportunity for a fair hearing before
mere suspension of a driver's license. A driver's license clearly
does not rise to the level of "necessity" exemplified by wages and
welfare benefits. Rather, as the Court accurately stated, it is an
"important interest," id. at 402 U. S. 539 ,
entitled to the protection of procedural due process of law.

															The household goods, for which the appellants contracted and
paid substantial sums, are deserving of similar protection. While a
driver's license, for example, "may become [indirectly] essential
in the pursuit of a livelihood," ibid., a stove or a bed
may be equally essential to provide a minimally decent environment
for human beings in their day-to-day lives. It is, after all, such
consumer goods that people work and earn a livelihood in order to
acquire.

															No doubt, there may be many gradations in the "importance" or
"necessity" of various consumer goods. Stoves could be compared to
television sets, or beds Page 407 U. S. 90 could be compared to tables. But if the root principle of
procedural due process is to be applied with objectivity, it cannot
rest on such distinctions. The Fourteenth Amendment speaks of
"property" generally. And, under our free enterprise system, an
individual's choices in the marketplace are respected, however
unwise they may seem to someone else. It is not the business of a
court adjudicating due process rights to make its own critical
evaluation of those choices and protect only the ones that, by its
own lights, are "necessary." [ Footnote 21 ] VI There are "extraordinary situations" that justify postponing
notice and opportunity for a hearing. Boddie v.
Connecticut, 401 U.S. at 401 U. S. 379 .
These situations, however, must be truly unusual. [ Footnote 22 ] Only in a few limited
situations Page 407 U. S. 91 has this Court allowed outright seizure [ Footnote 23 ] without opportunity for a prior
hearing. First, in each case, the seizure has been directly
necessary to secure an important governmental or general public
interest. Second, there has been a special need for very prompt
action. Third, the State has kept strict control over its monopoly
of legitimate force: the person initiating the seizure has been a
government official responsible for determining, under the
standards of a narrowly drawn statute, that it was necessary and
justified in the particular instance. Thus, the Court has allowed
summary seizure of property Page 407 U. S. 92 to collect the internal revenue of the United States, [ Footnote 24 ] to meet the needs of a
national war effort, [ Footnote
25 ] to protect against the economic disaster of a bank failure,
[ Footnote 26 ] and to protect
the public from misbranded drugs [ Footnote 27 ] and contaminated food. [ Footnote 28 ]

															The Florida and Pennsylvania prejudgment replevin statutes serve
no such important governmental or general public interest. They
allow summary seizure of a person's possessions when no more than
private gain is directly at stake. [ Footnote 29 ] The replevin of chattels, as in the Page 407 U. S. 93 present cases, may satisfy a debt or settle a score. But state
intervention in a private dispute hardly compares to state action
furthering a war effort or protecting the public health.

															Nor do the broadly drawn Florida and Pennsylvania statutes limit
the summary seizure of goods to special situations demanding prompt
action. There may be cases in which a creditor could make a showing
of immediate danger that a debtor will destroy or conceal disputed
goods. But the statutes before us are not "narrowly drawn to meet
any such unusual condition." Sniadach v. Family Finance Corp.,
supra, at 395 U. S. 339 .
And no such unusual situation is presented by the facts of these
cases.

															The statutes, moreover, abdicate effective state control over
state power. Private parties, serving their own private advantage,
may unilaterally invoke state power to replevy goods from another.
No state official participates in the decision to seek a writ; no
state official reviews the basis for the claim to repossession; and
no state official evaluates the need for immediate seizure. There
is not even a requirement that the plaintiff provide any
information to the court on these matters. The State acts largely
in the dark. [ Footnote
30 ] Page 407 U. S. 94 VII Finally, we must consider the contention that the appellants who
signed conditional sales contracts thereby waived their basic
procedural due process rights. The contract signed by Mrs. Fuentes
provided that, "in the event of default of any payment or payments,
Seller at its option may take back the merchandise. . . ." The
contracts signed by the Pennsylvania appellants similarly provided
that the seller "may retake" or "repossess" the merchandise in the
event of a "default in any payment." These terms were parts of
printed form contracts, appearing in relatively small type and
unaccompanied by any explanations clarifying their meaning.

															In D. H. Overmyer Co. v. Frick Co., 405 U.
S. 174 , the Court recently outlined the considerations
relevant to determination of a contractual waiver of due process
rights. Applying the standards governing waiver of constitutional
rights in a criminal proceeding [ Footnote 31 ] -- although not holding that such standards
must necessarily apply -- the Court held that, on the particular
facts of that case, the contractual waiver of due process Page 407 U. S. 95 rights was "voluntarily, intelligently, and knowingly" made. Id. at 405 U. S. 187 .
The contract in Overmyer was negotiated between two
corporations; the waiver provision was specifically bargained for,
and drafted by their lawyers in the process of these negotiations.
As the Court noted, it was "not a case of unequal bargaining power
or overreaching. The Overmyer-Frick agreement, from the start, was
not a contract of adhesion." Id. at 405 U. S. 186 .
Both parties were "aware of the significance" of the waiver
provision. Ibid. The facts of the present cases are a far cry from those of Overmyer. There was no bargaining over contractual terms
between the parties who, in any event, were far from equal in
bargaining power. The purported waiver provision was a printed part
of a form sales contract and a necessary condition of the sale. The
appellees made no showing whatever that the appellants were
actually aware or made aware of the significance of the fine print
now relied upon as a waiver of constitutional rights.

															The Court in Overmyer observed that,

															"where the contract is one of adhesion, where there is great
disparity in bargaining power, and where the debtor receives
nothing for the [waiver] provision, other legal consequences may
ensue." Id. at 405 U. S. 188 .
Yet, as in Overmyer, there is no need in the present cases
to canvass those consequences fully. For a waiver of constitutional
rights in any context must, at the very least, be clear. We need
not concern ourselves with the involuntariness or unintelligence of
a waiver when the contractual language relied upon does not, on its
face, even amount to a waiver.

															The conditional sales contracts here simply provided that, upon
a default, the seller "may take back," "may retake" or "may
repossess" merchandise. The contracts Page 407 U. S. 96 included nothing about the waiver of a prior hearing. They did
not indicate how or through what process -- a final judgment,
self-help, prejudgment replevin with a prior hearing, or
prejudgment replevin without a prior hearing -- the seller could
take back the goods. Rather, the purported waiver provisions here
are no more than a statement of the seller's right to repossession
upon occurrence of certain events. The appellees do not suggest
that these provisions waived the appellants' right to a full
post-seizure hearing to determine whether those events had, in
fact, occurred and to consider any other available defenses. By the
same token, the language of the purported waiver provisions did not
waive the appellants' constitutional right to a pre-seizure hearing
of some kind. VIII We hold that the Florida and Pennsylvania prejudgment replevin
provisions work a deprivation of property without due process of
law insofar as they deny the right to a prior opportunity to be
heard before chattels are taken from their possessor. [ Footnote 32 ] Our holding, however,
is a narrow one. 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. The
nature and form of such prior hearings, moreover, are legitimately
open to many potential variations, and are a Page 407 U. S. 97 subject, at this point, for legislation -- not adjudication.
[ Footnote 33 ] Since the
essential reason for the requirement of a prior hearing is to
prevent unfair and mistaken deprivations of property, however, 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, at 395 U. S. 343 (Harlan, J., concurring). See Bell v. Burson, supra, at 402 U. S. 540 ; Goldberg v. Kelly, supra, at 397 U. S.
267 .

															For the foregoing reasons, the judgments of the District Courts
are vacated, and these cases are remanded for further proceedings
consistent with this opinion. It is so ordered. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST did not participate
in the consideration or decision of these cases.

															* Together with No. 70-5138, Parham et al. v. Cortese et
al., on appeal from the United States District Court for the
Eastern District of Pennsylvania.

															[ Footnote 1 ] See infra at 407 U. S.
73 -75

															[ Footnote 2 ]

															Both Mrs. Fuentes and the appellants in No. 5138 also challenged
the prejudgment replevin procedures under the Fourth Amendment,
made applicable to the States by the Fourteenth. We do not,
however, reach that issue. See n 32, infra. [ Footnote 3 ]

															Neither Mrs. Fuentes nor the appellants in No. 5138 sought an
injunction against any pending or future court proceedings as such. Compare Younger v. Harris, 401 U. S.
37 . Rather, they challenged only the summary
extrajudicial process of prejudgment seizure of property to which
they had already been subjected. They invoked the jurisdiction of
the federal district courts under 42 U.S.C. § 1983 and 28 U.S.C. §
1343(3).

															[ Footnote 4 ]

															Unlike Mrs. Fuentes in No. 5039, none of the appellants in No.
5138 was ever sued in any court by the party who initiated seizure
of the property. See infra at 407 U. S.
77 -78.

															[ Footnote 5 ]

															Since the announcement of this Court's decision in Sniadach
v. Family Finance Corp., 395 U. S. 337 ,
summary prejudgment remedies have come under constitutional
challenge throughout the country. The summary deprivation of
property under statutes very similar to the Florida and
Pennsylvania statutes at issue here has been held unconstitutional
by at least two courts. Laprease v. Raymours Furniture
Co., 315 F.
Supp. 716 (NDNY); Blair v. Pitchess, 5 Cal. 3d 258 ,
486 P.2d 1242. But see Brunswick Corp. v. J. P., Inc., 424
F.2d 100 (CA10); Wheeler v. Adams Co., 322 F.
Supp. 645 (Md.); Almor Furniture & Appliances, Inc. v.
MacMillan, 116 N.J.Super. 65, 280 A.2d 862 . Applying Sniadach to other closely
related forms of summary prejudgment remedies, some courts have
construed that decision as setting forth general principles of
procedural due process and have struck down such remedies. E.g., Adams v. Egley, 338 F.
Supp. 614 (SD Cal.); Collins v. The Viceroy Hotel
Corp., 338 F.
Supp. 390 (ND Ill.); Santiago v.
McElroy, 319 F.
Supp. 284 (ED Pa.); Klim v. Jones, 315 F.
Supp. 109 (ND Cal.); Randone v. Appellate
Dept., 5 Cal. 3d 536 ,
488 P.2d 13; Larson v. Fetherston, 44 Wis.2d 712, 172 N.W.2d
20 ; Jones Press Inc. v. Motor Travel Services Inc., 286 Minn. 205, 176 N.W.2d
87 . See Lebowitz v. Forbes Leasing & Finance
Corp., 326 F.
Supp. 1335 , 1341-1348 (ED Pa.). Other courts, however, have
construed Sniadach as closely confined to its own facts
and have upheld such summary prejudgment remedies. E.g., Reeves
v. Motor Contract Co., 324 F.
Supp. 1011 (ND Ga.); Black Watch Farms v.
Dick, 323 F.
Supp. 100 (Conn.); American Olean Tile Co. v.
Zimmerman, 317 F.
Supp. 150 (Hawaii); Young v. Ridley, 309 F.
Supp. 1308 (DC); Termplan, Inc. v. Superior Court of
Maricopa County, 105 Ariz. 270, 463 P.2d 68 ; 300 West 154th Street Realty Co. v. Department of
Buildings, 26
N.Y.2d 538 , 260 N.E.2d 534.

															[ Footnote 6 ]

															The relevant Florida statutory provisions are the following:

															Fla.Stat.Ann. § 78.01 (Supp. 1972-1973):

															"Right to replevin. -- Any person whose goods or chattels are
wrongfully detained by any other person or officer may have a writ
of replevin to recover them and any damages sustained by reason of
the wrongful caption or detention as herein provided. Or such
person may seek like relief, but with summons to defendant instead
of replevy writ in which event no bond is required and the property
shall be seized only after judgment, such judgment to be in like
form as that provided when defendant has retaken the property on a
forthcoming bond."

															Fla.Stat.Ann. § 78.07 (Supp. 1972-1973):

															"Bond; Requisites. -- Before a replevy writ issues, plaintiff
shall file a bond with surety payable to defendant to be approved
by the clerk in at least double the value of the property to be
replevied conditioned that plaintiff will prosecute his action to
effect and without delay and that, if defendant recovers judgment
against him in the action, he will return the property, if return
thereof is adjudged, and will pay defendant all sums of money
recovered against plaintiff by defendant in the action."

															Fla.Stat.Ann. § 78.08 (Supp. 1972-1973):

															"Writ; form; return. -- The writ shall command the officer to
whom it may be directed to replevy the goods and chattels in
possession of defendant, describing them, and to summon the
defendant to answer the complaint."

															Fla.Stat.Ann. § 78.10 (Supp. 1972-1973):

															"Writ; execution on property in buildings, etc. -- In executing
the writ of replevin, if the property or any part thereof is
secreted or concealed in any dwelling house or other building or
enclosure, the officer shall publicly demand delivery thereof and
if it is not delivered by the defendant or some other person, he
shall cause such house, building or enclosure to be broken open and
shall make replevin according to the writ; and if necessary, he
shall take to his assistance the power of the county."

															Fla.Stat.Ann. § 78.13 (Supp. 1972-1973):

															"Writ; disposition of property levied on. -- The officer
executing the writ shall deliver the property to plaintiff after
the lapse of three (3) days from the time the property was taken
unless within the three (3) days defendant gives bond with surety
to be approved by the officer in double the value of the property
as appraised by the officer, conditioned to have the property
forthcoming to abide the result of the action, in which event the
property shall be redelivered to defendant."

															[ Footnote 7 ]

															The basic Pennsylvania statutory provision regarding the
issuance of writs of replevin is the following:

															"Pa.Stat.Ann., Tit. 12, § 1821. Writs of replevin
authorized"

															"It shall and may be lawful for the justices of each county in
this province to grant writs of replevin, in all cases whatsoever,
where replevins may be granted by the laws of England, taking
security as the said law directs, and make them returnable to the
respective courts of common pleas, in the proper county, there to
be determined according to law."

															The procedural prerequisites to issuance of a prejudgment writ
are, however, set forth in the Pennsylvania Rules of Civil
Procedure. The relevant rules are the following:

															"Rule 1073. Commencement of Action"

															"(a) An action of replevin with bond shall be commenced by
filing with the prothonotary a praecipe for a writ of replevin with
bond, together with"

															"(1) the plaintiff's affidavit of the value of the property to
be replevied, and"

															"(2) the plaintiff's bond in double the value of the property,
with security approved by the prothonotary, naming the Commonwealth
of Pennsylvania as obligee, conditioned that, if the plaintiff
fails to maintain his right of possession of the property, he shall
pay to the party entitled thereto the value of the property and all
legal costs, fees and damages sustained by reason of the issuance
of the writ."

															"(b) An action of replevin without bond shall be commenced by
filing with the prothonotary"

															"(1) a praecipe for a writ of replevin without bond or"

															"(2) a complaint."

															"If the action is commenced without bond, the sheriff shall not
replevy the property but at any time before the entry of judgment
the plaintiff, upon filing the affidavit and bond prescribed by
subdivision (a) of this rule, may obtain a writ of replevin with
bond, issued in the original action, and have the sheriff replevy
the property."

															"Rule 1076. Counterbond"

															"(a) A counterbond may be filed with the prothonotary by a
defendant or intervenor claiming the right to the possession of the
property, except a party claiming only a lien thereon, within
seventy-two (72) hours after the property has been replevied, or
within seventy-two (72) hours after service upon the defendant when
the taking of possession of the property by the sheriff has been
waived by the plaintiff as provided by Rule 1077(a), or within such
extension of time as may be granted by the court upon cause
shown."

															"(b) The counterbond shall be in the same amount as the original
bond, with security approved by the prothonotary, naming the
Commonwealth of Pennsylvania as obligee, conditioned that, if the
party filing it fails to maintain his right to possession of the
property he shall pay to the party entitled thereto the value of
the property, and all legal costs, fees and damages sustained by
reason of the delivery of the replevied property to the party
filing the counterbond."

															"Rule 1077. Disposition of Replevied Property. Sheriff's
Return"

															"(a) When a writ of replevin with bond is issued, the sheriff
shall leave the property during the time allowed for the filing of
a counterbond in the possession of the defendant or of any other
person if the plaintiff so authorizes him in writing."

															"(b) Property taken into possession by the sheriff shall be held
by him until the expiration of the time for filing a counterbond.
If the property is not ordered to be impounded and if no
counterbond is filed, the sheriff shall deliver the property to the
plaintiff."

															"(c) If the property is not ordered to be impounded and the
person in possession files a counterbond, the property shall be
delivered to him, but if he does not file a counterbond, the
property shall be delivered to the party first filing a
counterbond."

															"(d) When perishable property is replevied the court may make
such order relating to its sale or disposition as shall be
proper."

															"(e) The return of the sheriff to the writ of replevin with bond
shall state the disposition made by him of the property and the
name and address of any person found in possession of the
property."

															[ Footnote 8 ]

															Pa.Rule Civ.Proc. 1073(b) does establish a procedure whereby an
applicant may obtain a writ by filing a complaint, initiating a
later court action. See n 7, supra. In the case of every appellant in No.
70-5138, the applicant proceeded under Rule 1073(a), rather than
1073(b), seizing property under no more than a security bond and
initiating no court action.

															[ Footnote 9 ]

															Pa.Rule Civ.Proc. 1037(a) establishes the procedure for
initiating such a suit:

															"If an action is not commenced by a complaint [under Rule
1073(b)], the prothonotary, upon praecipe of the defendant, shall
enter a rule upon the plaintiff to file a complaint. If a complaint
is not filed within twenty (20) days after service of the rule, the
prothonotary, upon praecipe of the defendant, shall enter a
judgment of non pros."

															None of the appellants in No. 70-5138 attempted to initiate the
process to require the filing of a post-seizure complaint under
Rule 1037(a).

															[ Footnote 10 ] See T. Plucknett, A Concise History of the Common Law
367-369 (1956); 3 W. Holdsworth, History of English Law 284-285
(1927); 2 F. Pollock & F. Maitland, History of English Law 577
(1909); J. Cobbey, Replevin 19-29 (1890).

															[ Footnote 11 ] See Plucknett, supra, n 10, at 362-365; Pollock & Maitland, supra, n 10, at
173-175, 203-211.

															[ Footnote 12 ]

															The creditor could, of course, proceed without the use of state
power, through self-help, by "distraining" the property before a
judgment. See n 10, supra. [ Footnote 13 ]

															They may not even test that much. For if an applicant for the
writ knows that he is dealing with an uneducated, uninformed
consumer with little access to legal help and little familiarity
with legal procedures, there may be a substantial possibility that
a summary seizure of property -- however unwarranted -- may go
unchallenged, and the applicant may feel that he can act with
impunity.

															[ Footnote 14 ]

															The appellants argue that this opportunity for quick recovery
exists only in theory. They allege that very few people in their
position are able to obtain a recovery bond, even if they know of
the possibility. Appellant Fuentes says that, in her case, she was
never told that she could recover the stove and stereo, and that
the deputy sheriff seizing them gave them at once to the Firestone
agent, rather than holding them for three days. She further asserts
that, of 442 cases of prejudgment replevin in small claims courts
in Dade County, Florida, in 1969, there was not one case in which
the defendant took advantage of the recovery provision.

															[ Footnote 15 ] Bell v. Burson, 402 U. S. 535 , 402 U. S. 536 .
Although not mentioned in the Sniadach opinion, there
clearly was a quick-recovery provision in the Wisconsin prejudgment
garnishment statute at issue. Wis.Stat.Ann. § 267.21(1) (Supp.
1970-1971). Family Finance Corp. v. Sniadach, 37 Wis.2d
163, 173-114, 154 N.W.2d 259, 265. Mr. Justice Harlan adverted to
the recovery provision in his concurring opinion. 395 U.S. at 395 U. S.
343 .

															These sorts of provisions for recovery of property by posting
security are, of course, entirely different from the security
requirement upheld in Lindsey v. Normet, 405 U. S.
56 , 405 U. S. 65 .
There, the Court upheld a requirement that a tenant wanting a
continuance of an eviction hearing must post security for accruing
rent during the continuance. The tenant did not have to post
security in order to remain in possession before a hearing; rather,
he had to post security only in order to obtain a continuance of
the hearing. Moreover, the security requirement in Lindsey was not a recovery provision. For the tenant was not deprived of
his possessory interest even for one day without opportunity for a
hearing.

															[ Footnote 16 ]

															The possessory interest of Rosa Washington, an appellant in No.
5138, in her son's clothes, furniture, and toys was no less
sufficient to invoke due process safeguards. Her interest was not
protected by contract. Rather, it was protected by ordinary
property law, there being a dispute between her and her estranged
husband over which of them had a legal right not only to custody of
the child but also to possession of the chattels.

															[ Footnote 17 ]

															Mrs. Fuentes argues that Florida law allows her to defend on the
ground that Firestone breached its obligations under the sales
contract by failing to repair serious defects in the stove it sold
her. We need not consider this issue here. It is enough that the
right to continued possession of the goods was open to some dispute
at a hearing, since the sellers of the goods had to show, at the
least, that the appellants had defaulted in their payments.

															[ Footnote 18 ]

															The issues decisive of the ultimate right to continued
possession, of course, may be quite simple. The simplicity of the
issues might be relevant to the formality or scheduling of a prior
hearing. See Lindsey v. Normet, 405 U.S. at 405 U. S. 65 .
But it certainly cannot undercut the right to a prior hearing of
some kind.

															[ Footnote 19 ]

															The Supreme Court of California recently put the matter
accurately:

															" Sniadach does not mark a radical departure in
constitutional adjudication. It is not a rivulet of wage
garnishment, but part of the mainstream of the past procedural due
process decisions of the United States Supreme Court." Randone v. Appellate Dept., 5 Cal. 3d 536 ,
550, 488 P.2d 13, 22.

															[ Footnote 20 ] Sniadach v. Family Finance Corp., supra, at 395 U. S. 340 ; Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 264 .
Of course, the primary issue in Goldberg was the form of
hearing demanded by due process before termination of welfare
benefits; the importance of welfare was directly relevant to that
question.

															[ Footnote 21 ]

															The relative weight of liberty or property interests is
relevant, of course, to the form of notice and hearing required by
due process. See, e.g., Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 378 ,
and cases cited therein. But some form of notice and hearing --
formal or informal -- is required before deprivation of a property
interest that "cannot be characterized as de minimis. " Sniadach v. Family Finance Corp., supra, at 395 U. S. 342 (Harlan, J., concurring).

															[ Footnote 22 ]

															A prior hearing always imposes some costs in time, effort, and
expense, and it is often more efficient to dispense with the
opportunity for such a hearing. But these rather ordinary costs
cannot outweigh the constitutional right. See Bell v. Burson,
supra, at 402 U. S.
540 -541; Goldberg v. Kelly, supra, at 397 U. S. 261 .
Procedural due process is not intended to promote efficiency or
accommodate all possible interests: it is intended to protect the
particular interests of the person whose possessions are about to
be taken.

															"The establishment of prompt efficacious procedures to achieve
legitimate state ends is a proper state interest worthy of
cognizance in constitutional adjudication. But the Constitution
recognizes higher values than speed and efficiency. Indeed, one
might fairly say of the Bill of Rights in general, and the Due
Process Clause in particular, that they were designed to protect
the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize
praiseworthy government officials no less, and perhaps more, than
mediocre ones." Stanley v. Illinois, 405 U. S. 645 ,6 405 U. S. 56 .

															[ Footnote 23 ]

															Of course, outright seizure of property is not the only kind of
deprivation that must be preceded by a prior hearing. See,
e.g., Sniadach v. Family Finance Corp., supra. In three cases,
the Court has allowed the attachment of property without a prior
hearing. In one, the attachment was necessary to protect the public
against the same sort of immediate harm involved in the seizure
cases -- a bank failure. Coffin Bros. & Co. v.
Bennett, 277 U. S. 29 .
Another case involved attachment necessary to secure jurisdiction
in state court -- clearly a most basic and important public
interest. Ownbey v. Morgan, 256 U. S.
94 . It is much less clear what interests were involved
in the third case, decided with an unexplicated per curiam opinion
simply citing Coffin Bros. and Ownbey. McKay
v. McInnes, 279 U.S. 820. As far as essential procedural due
process doctrine goes, McKay cannot stand for any more
than was established in the Coffin Bros. and Ownbey cases on which it relied completely. See
Sniadach v. Family Finance Corp., supra, at 395 U. S. 340 ; id. at 395 U. S. 344 (Harlan, J., concurring).

															In cases involving deprivation of other interests, such as
government employment, the Court similarly has required an
unusually important governmental need to outweigh the right to a
prior hearing. See, e.g., Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S.
895 -896.

															Seizure under a search warrant is quite a different matter, see n 30, infra. [ Footnote 24 ] Phillips v. Commissioner, 283 U.
S. 589 . The Court stated that

															"[d]elay in the judicial determination of property rights is not
uncommon where it is essential that governmental needs be immediately satisfied." Id. at 283 U. S. 597 (emphasis supplied). The Court then relied on "the need of the
government promptly to secure its revenues." Id. at 283 U. S.
596 .

															[ Footnote 25 ] Central Union Trust Co. v. Garvan, 254 U.
S. 554 , 254 U. S. 566 ; Stoehr v. Wallace, 255 U. S. 239 , 255 U. S. 245 ; United States v. Pfitsch, 256 U.
S. 547 , 256 U. S.
553 .

															[ Footnote 26 ] Fahey v. Mallonee, 332 U. S. 245 .

															[ Footnote 27 ] Ewing v. Mytinger & Casselberry, Inc., 339 U.
S. 594 .

															[ Footnote 28 ] North American Storage Co. v. Chicago, 211 U.
S. 306 .

															[ Footnote 29 ]

															By allowing repossession without an opportunity for a prior
hearing, the Florida and Pennsylvania statutes may be intended
specifically to reduce the costs for the private party seeking to
seize goods in another party's possession. Even if the private gain
at stake in repossession actions were equal to the great public
interests recognized in this Court's past decisions, see nn 24-28, supra, the Court has made clear that the avoidance of the ordinary costs
imposed by the opportunity for a hearing is not sufficient to
override the constitutional right. See n 22, supra. The appellees argue
that the cost of holding hearings may be especially onerous in the
context of the creditor-debtor relationship. But the Court's
holding in Sniadach v. Family Finance Corp., supra, indisputably demonstrates that ordinary hearing costs are no more
able to override due process rights in the creditor-debtor context
than in other contexts.

															In any event, the aggregate cost of an opportunity to be heard
before repossession should not be exaggerated. For we deal here
only with the right to an opportunity to be heard. Since the issues
and facts decisive of rights in repossession suits may very often
be quite simple, there is a likelihood that many defendants would
forgo their opportunity, sensing the futility of the exercise in
the particular case. And, of course, no hearing need be held unless
the defendant, having received notice of his opportunity, takes
advantage of it.

															[ Footnote 30 ]

															The seizure of possessions under a writ of replevin is entirely
different from the seizure of possessions under a search warrant.
First, a search warrant is generally issued to serve a highly
important governmental need -- e.g., the apprehension and
conviction of criminals -- rather than the mere private advantage
of a private party in an economic transaction. Second, a search
warrant is generally issued in situations demanding prompt action.
The danger is all too obvious that a criminal will destroy or hide
evidence or fruits of his crime if given any prior notice. Third,
the Fourth Amendment guarantees that the State will not issue
search warrants merely upon the conclusory application of a private
party. It guarantees that the State will not abdicate control over
the issuance of warrants and that no warrant will be issued without
a prior showing of probable cause. Thus, our decision today in no
way implies that there must be opportunity for an adversary hearing
before a search warrant is issued. But cf. A Quantity of Books
v. Kansas, 378 U. S. 205 .

															[ Footnote 31 ] See Brady v. United States, 397 U.
S. 742 , 397 U. S. 748 ; Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 .
In the civil area, the Court has said that "[w]e do not presume
acquiescence in the loss of fundamental rights," Ohio Bell Tel.
Co. v. Public Utilities Comm'n, 301 U.
S. 292 , 301 U. S. 307 .
Indeed, in the civil no less than the criminal area, "courts
indulge every reasonable presumption against waiver." Aetna
Ins. Co. v. Kennedy, 301 U. S. 389 , 301 U. S.
393 .

															[ Footnote 32 ]

															We do not reach the appellants' argument that the Florida and
Pennsylvania statutory procedures violate the Fourth Amendment,
made applicable to the States by the Fourteenth. See n 2, supra. For once a
prior hearing is required, at which the applicant for a writ must
establish the probable validity of his claim for repossession, the
Fourth Amendment problem may well be obviated. There is no need for
us to decide that question at this point.

															[ Footnote 33 ]

															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.

															MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN join, dissenting.

															Because the Court's opinion and judgment improvidently, in my
view, call into question important aspects of the statutes of
almost all the States governing secured transactions and the
procedure for repossessing personal property, I must dissent for
the reasons that follow.

															First: It is my view that, when the federal actions were filed
in these cases and the respective District Page 407 U. S. 98 Courts proceeded to judgment, there were state court proceedings
in progress. It seems apparent to me that the judgments should be
vacated and the District Courts instructed to reconsider these
cases in the light of the principles announced in Younger v.
Harris, 401 U. S. 37 (1971); Samuels v. Mackell, 401 U. S.
66 ; Boyle v. Landry, 401 U. S.
77 ; and Perez v. Ledesma, 401 U. S.
82 .

															In No. 70-5039, the Florida statutes provide for the
commencement of an action of replevin, with bond, by serving a writ
summoning the defendant to answer the complaint. Thereupon, the
sheriff may seize the property, subject to repossession by
defendant within three days upon filing of a counterbond, failing
which the property is delivered to plaintiff to await final
judgment in the replevin action. Fla.Stat.Ann. § 78.01 et
seq. (Supp. 1972-1973). This procedure was attacked in a
complaint filed by appellant Fuentes in the federal court, alleging
that an affidavit in replevin had been filed by Firestone Tire
& Rubber Co. in the Small Claims Court of Dade County; that a
writ of replevin had been issued pursuant thereto and duly served,
together with the affidavit and complaint; and that a trial date
had been set in the Small Claims Court. Firestone's answer admitted
that the replevin action was pending in the Small Claims Court and
asserted that Mrs. Fuentes, plaintiff in the federal court and
appellant here, had not denied her default or alleged that she had
the right to possession of the property. Clearly, state court
proceedings were pending, no bad faith or harassment was alleged,
and no irreparable injury appeared that could not have been averted
by raising constitutional objections in the pending state court
proceeding. In this posture, it would appear that the case should
be reconsidered under Younger v. Harris and companion
cases, which were announced after the District Court's
judgment. Page 407 U. S. 99 In No. 70-5138, Pennsylvania Rule of Civil Procedure 1073
expressly provides that an "[a]ction of replevin with bond shall be
commenced by filing with the prothonotary a praecipe for a writ of
replevin with bond. . . ." When the writ issues and is served, the
defendant has three days to file a counterbond, and, should he care
to have a hearing, he may file his own praecipe, in which event the
plaintiff must proceed further in the action by filing and serving
his complaint.

															In the cases before us, actions in replevin were commenced in
accordance with the rules, and appellee Sears, Roebuck & Co.
urged in the District Court that plaintiffs had

															"adequate remedies at law which they could pursue in the state
court proceedings which are still pending in accordance with the
statutes and rules of Pennsylvania."

															App. 60. Under Younger v. Harris and companion cases,
the District Court's judgment should be vacated and the case
reconsidered.

															Second: it goes without saying that, in the typical installment
sale of personal property, both seller and buyer have interests in
the property until the purchase price is fully paid, the seller
early in the transaction often having more at stake than the buyer.
Nor is it disputed that the buyer's right to possession is
conditioned upon his making the stipulated payments, and that, upon
default, the seller is entitled to possession. Finally, there is no
question in these cases that, if default is disputed by the buyer
he has the opportunity for a full hearing, and that, if he
prevails, he may have the property or its full value as
damages.

															The narrow issue, as the Court notes, is whether it comports
with due process to permit the seller, pending final judgment, to
take possession of the property through a writ of replevin served
by the sheriff without affording the buyer opportunity to insist
that the seller establish at a hearing that there is reasonable Page 407 U. S. 100 basis for his claim of default. The interests of the buyer and
seller are obviously antagonistic during this interim period: the
buyer wants the use of the property pending final judgment; the
seller's interest is to prevent further use and deterioration of
his security. By the Florida and Pennsylvania laws, the property
is, to all intents and purposes, placed in custody and immobilized
during this time. The buyer loses use of the property temporarily,
but is protected against loss; the seller is protected against
deterioration of the property, but must undertake by bond to make
the buyer whole in the event the latter prevails.

															In considering whether this resolution of conflicting interests
is unconstitutional, much depends on one's perceptions of the
practical considerations involved. The Court holds it
constitutionally essential to afford opportunity for a probable
cause hearing prior to repossession. Its stated purpose is "to
prevent unfair and mistaken deprivations of property." But in these
typical situations, the buyer-debtor has either defaulted or he has
not. If there is a default, it would seem not only "fair," but
essential, that the creditor be allowed to repossess; and I cannot
say that the likelihood of a mistaken claim of default is
sufficiently real or recurring to justify a broad constitutional
requirement that a creditor do more than the typical state law
requires and permits him to do. Sellers are normally in the
business of selling and collecting the price for their merchandise.
I could be quite wrong, but it would not seem in the creditor's
interest for a default occasioning repossession to occur; as a
practical matter, it would much better serve his interests if the
transaction goes forward and is completed as planned.
Dollar-and-cents considerations weigh heavily against false claims
of default, as well as against precipitate action that would allow
no opportunity for mistakes to surface and be Page 407 U. S. 101 corrected.* Nor does it seem to me that creditors would lightly
undertake the expense of instituting replevin actions and putting
up bonds.

															The Court relies on prior cases, particularly Goldberg v.
Kelly, 397 U. S. 254 (1970); Bell v. Burson, 402 U. S. 535 (1971); and Stanley v. Illinois, 405 U.
S. 645 (1972). But these cases provide no automatic test
for determining whether and when due process of law requires
adversary proceedings. Indeed, "[t]he very nature of due process
negates any concept of inflexible procedures universally applicable
to every imaginable situation. . . ."

															"[W]hat procedures due process may require under any given set
of circumstances must begin Page 407 U. S. 102 with a determination of the precise nature of the government
function involved as well as of the private interest that has been
affected by governmental action." Cafeteria Workers v. McElroy, 367 U.
S. 886 , 367 U. S. 895 (1961). See also Stanley v. Illinois, supra, at 405 U. S. 650 ; Goldberg v. Kelly, supra, at 397 U. S. 263 .
Viewing the issue before us in this light, I would not construe the
Due Process Clause to require the creditors to do more than they
have done in these cases to secure possession pending final
hearing. Certainly, I would not ignore, as the Court does, the
creditor's interest in preventing further use and deterioration of
the property in which he has substantial interest. Surely, under
the Court's own definition, the creditor has a "property" interest
as deserving of protection as that of the debtor. At least the
debtor, who is very likely uninterested in a speedy resolution that
could terminate his use of the property, should be required to make
those payments, into court or otherwise, upon which his right to
possession is conditioned. Cf. Lindsey v. Normet, 405 U. S. 56 (1972).

															Third: the Court's rhetoric is seductive, but, in end analysis,
the result it reaches will have little impact, and represents no
more than ideological tinkering with state law. It would appear
that creditors could withstand attack under today's opinion simply
by making clear in the controlling credit instruments that they may
retake possession without a hearing, or, for that matter, without
resort to Judicial process at all. Alternatively, they need only
give a few days' notice of a hearing, take possession if hearing is
waived or if there is default; and, if hearing is necessary, merely
establish probable cause for asserting that default has occurred.
It is very doubtful in my mind that such a hearing would, in fact,
result in protections for the debtor substantially different from
those the present laws provide. Page 407 U. S. 103 On the contrary, the availability of credit may well be
diminished or, in any event, the expense of securing it
increased.

															None of this seems worth the candle to me. The procedure that
the Court strikes down is not some barbaric hangover from bygone
days. The respective rights of the parties in secured transactions
have undergone the most intensive analysis in recent years. The
Uniform Commercial Code, which now so pervasively governs the
subject matter with which it deals, provides in Art. 9, § 9-503,
that:

															"Unless otherwise agreed, a secured party has on default the
right to take possession of the collateral. In taking possession a
secured party may proceed without judicial process if this can be
done without breach of the peace or may proceed by action. . .
."

															Recent studies have suggested no changes in Art. 9 in this
respect. See Permanent Editorial Board for the Uniform
Commercial Code, Review Committee for Article 9 of the Uniform
Commercial Code, Final Report, § 9-503 (April 25, 1971). I am
content to rest on the judgment of those who have wrestled with
these problems so long and often and upon the judgment of the
legislatures that have considered and so recently adopted
provisions that contemplate precisely what has happened in these
cases.

															* Appellants Paul and Ellen Parham admitted in their complaints
that they were delinquent in their payments. They stipulated to
this effect, as well as to receipt of notices of delinquency prior
to institution of the replevin action, and the District Court so
found.

															Appellant Epps alleged in his complaint that he was not in
default. The defendant, Government Employees Exchange Corp.,
answered that Epps was in default in the amount of $311.25 as of
August 9, 1970, that the entire sum due had been demanded in
accordance with the relevant documents, and that Epps had failed
and refused to pay that sum. The District Court did not resolve
this factual dispute. It did find that Epps earned in excess of
$10,000 per year, and that the agreements Epps and Parham entered
into complied with the provisions of Pennsylvania's Uniform
Commercial Code and its Services and Installment Sales Act.

															As for appellant Rosa Washington, the District Court, based on
the allegations of her complaint, entered a temporary restraining
order requiring that the property seized from her be returned
forthwith. At a subsequent hearing, the order was dissolved, the
court finding

															"that the representations upon which the temporary restraining
order of September 18, 1970, issued were incorrect, both as to
allegations contained in the complaint and representations made by
counsel."

															(App. 29.)

															It was stipulated between appellant Fuentes and defendants in
the District Court that Mrs. Fuentes was in default at the time the
replevin action was filed and that notices to this effect were sent
to her over several months prior to institution of the suit. (App.
25-26.)