author: Mr. Justice White Me. Justice Powell, Mr. Justice Stewart,

text:
    MITCHELL v. W. T. GRANT CO.
    No. 72-6160.
    Argued December 4, 1973
    Decided May 13, 1974

      White, J., delivered-the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Powell, J., filed a concurring opinion, post, p. 623. Brennan, J., filed a dissenting statement, post, p. 636. Stewart, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, and in which Brennan, J., joined in part, post, p. 629.

      Robert J. Hobbs argued the cause for petitioner. With him on the briefs was John W. Reed.

      Thomas J. O’Sullivan argued the cause for respondent.. With him on "the brief was Marshall J. Favret.

        William J. Guste, Jr., Attorney General, Warren E. Mouledoux, First Assistant Attorney General, and Louis M. Jones, Assistant Attorney General, filed a brief for the State of Louisiana as amicus curiae.

   Mr. Justice White

delivered the opinion of the Court.

In this case, a state trial judge in Louisiana ordered the sequestration of personal property on the application of a creditor.who had made an installment sale of the goods to petitioner' and' whose affidavit asserted delinquency and prayed for sequestration to enforce a vendor’s lien under state law. The issue is whether the sequestration violated the Due Process -Clause of the Fourteenth Amendment because it was ordered ex parte, without prior notice or opportunity for a hearing.

I

On February 2, 1972, respondent W. T. Grant Co. filed suit in the First City Court of the City of New Orleans, Louisiana, against petitioner, Lawrence Mitchell. The petition alleged the sale by Grant to Mitchell of a refrigerator, range, stereo, and washing machine, and an overdue and unpaid balance of the purchase price for said items in the amount of $574.17. Judgment for that sum was demanded. It was further alleged that Grant had a vendor’s lien on the goods and that a writ of sequestration should issue to sequester the merchandise pending the outcome of the suit. The accompanying affidavit of Grant’s credit manager swore to the truth of the facts alleged in the complaint. It also asserted that Grant had reason to believe petitioner would “encumber, alienate or otherwise dispose of the merchandise described in the foregoing petition during the pendency of these proceedings, and that a writ of sequestration is necessary in the premises.” Based on the foregoing petition and affidavit, and without prior notice to Mitchell or affording him opportunity for hearing, the judge of the First City Court, Arthur J. O’Keefe, then signed an order that “a writ of sequestration issue herein” and that “the Constable of this court sequester and take into his possession the articles of merchandise described in the foregoing petition, upon plaintiff furnishing bond in the amount of $1,125.” Bond in that amount having been' filed by the respondent, the writ of sequestration issúed, along with citation to petitioner Mitchell, citing him to file a pleading or make appearance in the First City Court of the eity of New Orleans within five days. The citation recited the filing of the writ of sequestration and the accompanying affidavit, order, and bond. On March 3 Mitchell filed a motion to dissolve the writ of sequestration issued on February 2. The motion asserted that the personal property at issue had been seized under the writ on February 7, 1972, and claimed, first, that the goods were exempt from seizure under state law and, second, that the seizure violated the Due Process Clauses of the State and Federal Constitutions in that it had occurred without prior notice and opportunity to defend petitioner’s right to possession of the property. The motion came on for hearing on March 14. It was then stipulated that -a vendor’s lien existed on the items, arguments of counsel were heard, and on Márch 16 the motion to dissolve was denied. The goods were held not exempt from seizure under state law. The trial court also ruled that “the provisional seizure enforced through sequestration” was not a denial of due process of law. “To the. contrary,” the trial judge said, “plaintiff insured defendant’s right to due process by proceeding in accordance with Louisiana Law as opposed to any type of self-help seizure which would have denied defendant possession of his property without due process.” The appellate courts of Louisiana refused’to disturb the rulings of the trial court, the Supreme Court of Louisiana expressly rejecting petitioner’s due process claims pressed under the Federal Constitution. 263 La. 627, 269 So. 2d. 186 (1972). We.granted certiorari, 411 U. S. 981 (1973), and now .affirm the judgment of the Louisiana Supreme Court.

11

Petitioner’s basic proposition is that because he had possession of and a substantial interest in the sequestered' property, the Due Process Clause of the Fourteenth Amendment necessarily forbade the seizure without prior notice and- opportunity for a hearing. In the circumstances presented .here; we. cannot'agree. •

Petitioner no doubt “owned” the goods he had purchased under an installment sales contract, but his title was heavily encumbered. The seller, W. T. Grant Co., also had an interest in the property, for state law provided it with a vendor’s lien to secure the unpaid balance of the purchase price. Because of the lien, Mitchell’s right to possession and his title were subject to defeasance in the event of default in paying the installments due from him.' His interest in the property, until the purchase price was paid in full, was no greater than the surplus remaining, if any, after foreclosure and sale of the property in the event of his default and satisfaction of outstanding claims. See La. Code Civ. Proc. Ann., Art. 2373 (1961). The interes^ of Grant, as seller of the property and holder, of a vendor’s lien, was measured by the unpaid balance of the purchase price. The monetary value of that interest in the property diminished as pay-* ments were made, but the value of the property as security also steadily diminished over time as it was put to its-intended use by the purchaser.

Plainly enough, this is not a case where the property sequestered by the court is exclusively the property of the defendant debtor. The question is not whether a debtor’s property may be seized by his creditors, pendente lite, where they hold no present interest in the property sought to be seized. The reality is that both seller and buyer had current, real interests in the property, and the definition of. property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property .but'those of the seller as well.-

With this duality in mind, we are convinced that the Louisiana sequestration procedure is not invalid, either on its face or as applied. Sequestration under the Louisiana statutes is the modern counterpart of an ancient civil law dévice to resolve conflicting claims to property. Historically, the two principal concerns have been that, pending resolution of the dispute, the property would deteriorate or be wasted in the hands of the possessor and that the latter might sell or otherwise dispose • of the goods. A minor theme was that official intervention would forestall violent self-help and retaliation. See Millar, Judicial Sequestration in Louisiana: Some Account of Its Sources, 30 Tul. L. Rev. 201, 206 (1956).

Louisiana statutes provide for sequestration where “one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon . . . if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.” Art. 3571. The writ, however, will not issue. on the conclusory allegation of ownership or possessory rights. Article 3501 provides that the writ of sequestration shall issue “only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts” shown by a verified petition or affidavit. In the parish where this case arose, the clear showing required must be made to a judge, and the writ will issue only upon his authorization and only after the creditor seeking the writ has filed a sufficient bond to protect the vendee ¿gainst all damages in the event the sequestration is shown to have been improvident. Arts. 3501 and 3574.

The writ is obtainable on the creditor’s ex parte application, without notice to the debtor or opportunity for a healing, but the statute entitles the debtor immediately to seek dissolution of the writ, which must be ordered unless the creditor “proves the grounds upon which the writ was issued,!’ Art. 3506, the existence of the debt, lien, and delinquency, failing which the court may order return of the property and assess damages in favor of the debtor, including .attorney’s fees.

The debtor, with or without moving to dissolve the sequestration,' may also regain possession by filing his own bond to protect the creditor against interim damage to him should he ultimately win his case and have judgment against the debtor for the unpaid balance of the purchase price which was the object of the suit and of the sequestration. Arts. 3507 and 3508.

In our view, this. statutory procedure effects a constitutional accommodation of the. conflicting interests of the parties. We cannot accept petitioner’s broad assertion that the Due Process Clause of the Fourteenth Amendment guaranteed to him the. use arid possession of the goods until all issues in thé case were judicially resolved after full adversary proceedings had been completed. It is_ certainly clear under this Court’s precedents. that issues can be limited in actions for possession. Indeed, in Grant Timber & Mfg. Co. v. Gray, 236 U. S. 133 (1915) (Holmes, J.), the Court upheld such limitations in possessory actions for real property in Louisiana. See also Bianchi v. Morales, 262 U. S. 170 (1923); Lindsey v. Normet, 405 U. S. 56 (1972). Petitioner’s claim must accordingly be narrowed to one for a hearing on the issues in the possessory action-default, the existence of a lien, and possession of the debtor — before property is taken.

As to this claim, the seller here, with a vendor’s lien to secure payment of the unpaid balance of purchase-price, had the right either to be paid in accordance with its contract or to have possession of the goods for the purpose of foreclosing its lien', and recovering the unpaid balance. By complaint and -affidavit, the seller swore to facts that would entitle it to immediate possession of the goods under its contract, undiminished in value by further deterioration through use of the property by the buyer. Wholly aside from whether the buyer, with possession and power over the property, will destroy or make away with the goods, the buyer in possession of consumer goods will undeniably put the property to its intended use, and the resale value of the merchandise will steadily decline as it is used over a period of time. Any installment seller anticipates as much, but he is normally protected because the buyer’s installment payments keep pace with thq deterioration in value of the’ security. Clearly, if payments cease and possession and use by the buyer, continue, the seller’s interest in the property as security is steadily and irretrievably eroded until thé time at which the full hearing is held.

The State of Louisiana was entitled to recognize this reality and to provide somewhat more protection for the seller. This it did in Orleans Parish by authorizing, the sequestration of property by a judge. At the same time, the buyer being deprived of possession, the seller was required to put up a bond to guarantee the buyer against damage or expense, including attorney’s fees, in the event the sequestration is shown to be mistaken or otherwise improvident. The buyer is permitted to regain possession by putting up his' own bond tó . protect the seller. Absent that bond,, which petitioner did not file in this- case;' the seller would be unprotected against the inevitable deterioration in the value of his security if the buyer remained in possession pending trial on the merits. The debtor, unlike the creditor, does not stand ready to make the opposing party whole,, if his possession, pending a prior hearing, turns out to be wrongful.

Second, there is the real risk that the buyer, with possession and power over the goods, will conceal or transfer the merchandise to the damage of' thé seller. This is one of the considerations weighed-in the balance by the Louisiana law in permitting initial sequestration .of the property. An important factor in.this-connection is that under -Louisiana law, the vendor’s- lien expires if the buyer transfers possession.- It follows that if' the .vendor is to retain his lien, superior to the rights of other creditors of the buyer, it is imperative when default occurs that the property be sequestered in order, .to foreclose the possibility that the buyer will sell or otherwise convey the property to third'parties against whom the -vendor’s lien will not survive. The danger of destruction or alienation cannot be-guarded against if notice and a hearing -before seizure are supplied.' The^ -notice itself may furnish a warning to the debtor acting in bad faith.

Third, there is scant support in our cases for.- the proposition that there must be final judicial determination of the seller’s entitlement before the buyer may be even temporarily-deprived of possession of the purchased* goods. On the contrary, it seems apparent that the seller with his own interest in the disputed merchandise would need to establish in any event only the probability that his case will succeed to warrant the bonded 'sequestration of the property., pending outcome of the suit. Cf. Bell v. Burson, 402 U. S. 535 (1971); Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950). The issue at this stage of the proceeding concerns possession pending trial and turns on the existence of the debt, the lien;, and the delinquency. These are. ordinarily uncomplicated matters that lend themselves, to documentary proof; and we think it comports with due process to- permit the, initial seizure on sworn ex parte documents, followed by the. early opportunity to put the creditor to his proof. The nature of the issues at stake minimizes thé risk that the writ will be wrongfully issued by a judge. The potential damages award available, if there is a successful motion to dissolve the writ, as well as the creditor’s own interest in avoiding interrupting the transaction, also contributes to minimizing this risk.

Fourth, we remain unconvinced that the impact on the debtor of deprivation of the household goods here in question overrides his inability to make the creditor whole for wrongful possession, the risk of destruction or alienation if notice and a prior hearing are supplied, and the low risk of- a wrongful determination of possession through the procedures now employed.

Finally, the debtor may immediately have a full hearing on the matter of possession following the execution of the writ, thus cutting to a bare minimum the time of creditor- or court-supervised possession. The debtor in this case, who did not avail himself of this opportunity, can hardly expect that his argument on the severity of deprivation will carry much weight, and even assuming that there is real impact on the debtor from loss of these goods, pending the hearing on possession, his basic, source of income is unimpaired.

The requirements of due process of law “are not technical, nor is any particular form of procedure necessary.” Inland Empire Council v. Millis, 325 U. S. 697, 710 (1945). Due process of law guarantees “no particular form of procedure; it protects substantial rights.” NLRB v. Mackay Co., 304 U. S. 333, 351 (1938). “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961); Stanley v. Illinois, 405 U. S. 645, 650 (1972). Considering the Louisiana procedure as a whole, we are convinced that the State has reached a constitutional accommodation of the respective interests of buyer and seller.

III

Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U. S. 337 (1969), and Fuentes v. Shewn, 407 U. S. 67 (1972). The pre-Sniadach cases are said by petitioner to hold that “the opportunity to be heard must precede any actual deprivation of private property.” Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been “[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate- judicial determination of liability is adequate.” Phillips v. Commissioner, 283 U. S. 589, 596-597 (1931). See also Scottish Union & National Ins. Co. v. Bowland, 196 U. S. 611, 632 (1905); Springer v. United States, 102 U. S. 586, 593-594 (1881). This generality sufficed to decide relatively modern cases. For example, in Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950), the statute at issue permitted-multiple seizures of misbranded articles in commerce “ ‘when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of thé Agency that the misbranded article . . . would be in a material respect misleading to the injury or damage. of thé purchaser or consumer.’ ’’ Id., at 595-596. The specific seizure challenged, made administratively without prior notice or hearing, concerned a concentrate of alfalfa, watercress, parsley, and synthetic vitamins, combined in a package with mineral tablets. There was no claim or suggestion of any. possible threat to health. The sole official claim was that the labeling was misleading to the alleged damage of the purchaser. The Court sustained the ex parte seizure saying that “[w]e have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective.” Id., at 598. “It is sufficient, where only property rights' are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.” Id., at 599.

More precisely in point, the Court had unanimously approved prejudgment attachment liens effected by creditors, without notice, hearing, or judicial order, saying that “nothing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit.” “The fact that the execution is issued in the first instance by an agent of the State but not from a Court, followed as it is by personal notice and a right to take the case into court, is a familiar method in Georgia and is open to no objection.” Coffin Bros. v. Bennett, 277 U. S. 29, 31 (1928). To the same effect-was the earlier case of Ownbey v. Morgan, 256 U. S. 94 (1921). Furthermore, based on Ownbey and Coffin, the Court later sustained the constitutionality of the Maine attachment statute. McKay v. McInnes, 279 U. S. 820 (1929). In that case, a nonresident of Maine sued in the Maine courts to collect a debt from a resident of the_ State. As permitted-by statute, and as an integral part of instituting the suit, the creditor attached the properties of the defendant, without notice and without judicial process of any kind. In sustaining the procedure, the Maine Supreme Court, 127 Me. 110, 141 A. 699 (1928), described the attachment as designed to create a lien for the creditor at the outset of the litigation. “Its purpose is simply to secure to the creditor the property which the debtor has at the time it is made .so that it may be seized and levied upon in .satisfaction of the debt after judgment and execution may be obtained.” Id., at 115, 141 A., at 702. The attachment was deemed “part of the remedy provided for the collection of the debt,” ibid., and represented a practice that “had become fully established in Massachusetts, part of which Maine was at the time of the adoption of the Federal Constitution.” Id., at 114, 141 A., at 702. The judgment of the Maine court was affirmed without opinion, citing' Ownbey and Coffin.

In Sniadach v. Family Finance Corp., supra, it was said that McKay and like cases dealt with “[a] procedural rule that may satisfy due process- for attachments in general” but one that would not “necessarily satisfy'procedural due process in every case,” nor one that “gives necessary protection to all property in its modern forms.” 395 U. S., at 340. Sniadach involved the prejudgment garnishment of wages — “a specialized type of property presenting distinct problems in our economic system.” Ibid. Because “[t]he leverage of the creditor on the wage earner is enormous” and because “prejudgment, garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall,” it was held- that, the Due Process Clause forbade such garnishment absent notice and prior hearing. Id., at 341-342.' In Sniadach, the Court also. observed that garnishment was subject to abuse' by creditors without valid claims, a risk minimized by the nature of the security interest here at stake and the protections to the .debtor offered by Louisiana procedure. Nor was it apparent in Sniadach with what speed the debtor could challenge the validity of the garnishment, and obviously the ■ creditor’s claim could not rest on the danger of. destruction of wages, the property seized, since their availability to satisfy the debt remained within the power of the debtor-who could simply leave his job. The suing creditor in- Sniadach had no prior interest in the property attached, and the opinion did not purport to govern' the typical case of the installment seller who brings a suit to collect ’an unpaid balance and who does not seek to attach-^ wages pending the outcome of the suit but to repossess the sold property on which he_had retained a lien to secure the purchase price. This very case soon came before the Court in Fuentes v. Shevin, where the constitutionality of the Florida and Pennsylvania replevin statutes was at issue. Those statutes permitted the secured installment seller to repossess the goods sold, without notice or hearing and without judicial order or supervision, but with the help of the sheriff operating under a writ issued by the court clerk at the behest of the seller. Because carried out without notice or opportunity for hearing and without judicial participation, this kind of seizure was held violative of the Due Process Clause. This holding is the mainstay of petitioner’s submission here. But we are convinced that Fuentes was decided against a factual and legal background sufficiently different from that now before us and that it does not require the invalidation of the Louisiana sequestration statute, either on its face or as applied in this case.

The Florida law under examination in Fuentes authorized repossession of the sold goods without judicial order, approval, or participation. A writ of replevin was employed, but it was issued by the court clerk. As the Florida law was perceived by this Court, “[t]here is no requirement that the applicant make a convincing showing before the seizure,” 407 U. S., at 73-74; the law required only “the bare assertion of the party seeking .the writ that he is entitled to one” as a condition to the clerk’s issuance of the writ. Id., at 74. The Court also said that under the statute the defendant-buyer would “eventually” have aft opportunity for a hearing, “as the defendant in the trial of the court action for repossession . . . .” Id., at 75. The Pennsylvania 'law. was considered to be essentially the same as that of Florida except that it did “not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property.” Id., at 77. The party seeking the writ was not obliged to initiate a court action for repossession, was not required formally to allege that he was entitled to the property and had only to file an affidavit of the-value of the property sought to be replevied. The Court distinguished - the Pennsylvania and Florida procedures from that of the common daw where, the- Court said,, “a state official made at least a summary determination of the relative right's of the disputing parties before .stepping into the dispute and taking goods from one of them.” Id., at 80.

The Louisiana sequestration statute followed, in this, case mandates a considerably different procedure.' A writ of sequestration is available to a mortgage or lien holder to forestall waste or "alienation of the property, but, different from the' Florida and Pennsylvania"' systems, bare, c'onclusory. claims of ownership or lien will not suffice under the Louisiana statute. Article 3501 authorizes the writ “ofily when the nature of the claim and the amount .thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from spéeific facts” shown by verified petition or affidavit. Moreover, in the parish where this.case arose, the.requisite showing must be made to a judge; and judicial authorization obtained. Mitchell was not at the unsupervised mercy of the creditor and court functionaries; The Louisiana law provides for judicial control of the process from beginning to end. This control is one of the measures adopted by the State to minimize the riék that the ex parte procedure will lead to a wrongful taking. It is buttressed by the provision that should the-writ be dissolved there are “damages for the wrongful issuance of a writ” and for attorney’s fees “whether the writ is dissolved on motion or after trial on the merits.” Art. 3506.

. The risk of wrongful use of the procedure must also be judged in the context of the issues which are to be determined at that proceeding. In Florida and Pennsylvania property was only to be replevied in accord with state' policy if it had been “wrongfully detained.” This broad “fault” standard is inherently subject to factual determination and adversarial input. As- in Bell v. Burson, where a driver’s license was suspended, without a prior hearing, when the suspension was premised on a fault standard, see Vlandis v. Kline, 412 U. S. 441, 446-447 (1973), in Fuentes this fault standard .for replevin was thought ill-süited for preliminary ex parte determination. ’ In Louisiana, on the other hand, the facts relevant to obtaining a writ of sequestration are narrowly confined. As wé have indicated, documentary proof is particularly suited for questions of the existence of a vendor’s lien and.the issue of default. There is thus.far less danger here that the seizure will •be mistaken and a corresponding decrease in the utility of an adversary hearing which will be immediately available in any event.

Of course, as in Fuentes, consideration of the impact on the debtor remains. Under Louisiana procedure, however, the debtor, Mitchell, was not left in limbo to await a hearing that might- or might not “eventually!’ occur, as the debtors were under the statutory schemes before the Court in. Fuentes. Louisiana law expressly provides for an immediate hearing and dissolution of the writ “unless the plaintiff proves the grounds upon which the writ'-was issued.” Art. 3506.

To summarize, the Louisiana system seeks to minimize the risk of error of a wrongful interim possession by the creditor. The system protects the debtor’s interest in every conceivable way, except allowing him to have the property to start with, and this is done in pursuit of what we deem an acceptable arrangement pendente lite to put the property in the possession of the party who furnishes protection against loss or damage to the other pending trial on the merits.

The Court must be. sensitive to the possible consequences, already foreseen in antiquity, of invalidating .this state statute. Doing .'so might not increase private violence,, but self-help repossession could easily lessen protections for the debtor. See, for example, Adams v. Southern California First National Bank, 492 F. 2d 324 (CA9 1973). Here, the initial hardship to the’debtor is limited, the seller has a strong interest, the process proceeds under judicial supervision and.management, and the prevailing party is protected against all. loss. Our conclusion is that the Louisiana standards regulating the use of the writ of sequestration are constitutional. Mitchell was not deprived of procedural due process in this case. The judgment of the Supreme Court of Louisiana is affirmed.

So ordered.

APPENDIX TO OPINION OF THE COURT STATUTES

PROVISIONS OF THE LOUISIANA CODE OF CIVIL PROCEDURE

Art. 281. Certain articles not applicable to Civil District Court for the Parish of Orleans

The provisions of Articles 282 through 286 do not apply to the clerk and the deputy clerks of the Civil District Court for the Parish of Orleans.

Art. 282. Acts which may be done by district court clerk

The clerk of a district court may:

(1) Grant an appeal and fix the return day thereof; fix the amount of the bond for an appeal, or for the issuance of a writ of attachment or of sequestration, or for the release of property seized under any writ, unless fixed by law; appoint an attorney at law to represent a nonresident, absent, incompetent, or unrepresented defendant; or dismiss without prejudice, on application of plaintiff, an action or proceeding in which no exception, answer, or intervention has been filed; and ....

Art. 283. Orders and judgments which may be signed by district court clerk

(2) An order for the issuance of executory process, of a writ of attachment or of sequestration, or of garnishment process under a writ of fieri facias, attachment, or of séquestration; the release under .bond of property seized under a writ of attachment or of sequestration; or to permit the filing of an intervention ....

Art. 325. • Right of entry for execution; may require assistance of others if resistance offered or threatened

In the execution of a writ, mandate, order, or judgment of a court, the sheriff may enter on the lands, and. into the residence or other building, owned or occupied by "the judgment debtor or defendant. .

Art. 2373. Distribution of proceéds of sale

After deducting the costs, the sheriff shall first,pay the amount due the seizing creditor, then the inferior mortgages, liens, and privileges on the property sold, and shall, pay to the debtor whatever -surplus may remain.

Art. 3501. Petition; affidavit; security

A writ of attachment or of sequestration shall issue only when the nature of. the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.

. The applicant shall, furnish security as required by law for the payment of the damages the defendant may sustain, when the writ is obtained wrongfully.

Art. 3504. Return of sheriff; inventory

The sheriff, after executing a writ of attachment or of sequestration, shall deliver to the clerk of the court from which the writ issued a written return stating the manner in which he executed the writ. He shall annex to the return an inventory of the property seized.

Art. 3506. Dissolution of writ; damages

The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.

.The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection”with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.

Art. 3507, Release of property by defendant; security

A defendant may obtain the release of the property seized under a writ of attachment or of sequestration by furnishing security for the satisfaction of any judgment which may be rendered against him.

Art. 3508. Amount of security for release of attached or sequestered property

The security for the release of property seized under a writ of attachment or of sequestration shall exceed by one-fourth the vklue of the property as determined by the court, or shall exceed by one-fourth the amount of the claim, whichever is the lesser.

Art. 3510. Necessity for judgment and execution

Except as provided in Article 3513 [perishables], a final judgment must be obtained in an action where a writ of attachment or of sequestration has issued before the property seized can be sold to satisfy the claim.

Art. 3571. Grounds for sequestration

When one claims the ownership or. right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.

Art. 3574. Plaintiff’s security

An applicant for a writ of sequestration shall furnish security for an amount determined by the court to be sufficiént to protect the defendant against any damage resulting from a wrongful issuance, unless security is dispensed with by law. .

Art. 3576. Release of property under sequestration

If the defendant does not effect the release of property seized under a writ of sequestration, as permitted by Article 3507, within ten days of the seizure, the plaintiff may effect the release thereof by furnishing the security required by Article 3508.

Me. Justice Powell,

concurring.

.In sweeping language, Fuentes v. Shevin, 407 U. S. 67 (1972), enunciated the principié that the constitutional guarantee of procedural due process requires an adversary hearing before an individual may be temporarily deprived .of. any- possessory interest in tangible personal property, however brief the dispossession and however slight his monetary interest in the property. The Court’s decision today withdraws significantly from the full reach of that principié, and to this extent I think it fair to say that the Fuentes opinion” is overruled.

I could have agreed that the Florida and Pennsylvania statutes in Fuentes were violative of. due process because of their arbitrary and unreasonable provisions. It seems to me, however, that it was unnecessary for the Fuentes, opinion to have, adopted so broad and inflexible a rule, especially one that considerably altered settled law with respect to commercial transactions and basic creditor-debtor understandings. Narrower grounds existed for invalidating the replevin, statutes in that case.

I

The constitutional guarantee of procedural due process applies to governmental deprivation .of. a legitimate “property” or “liberty” interest within the meaning of the Fifth or Fourteenth Amendment. It requires that any such deprivation be accompanied by minimum procedural safeguards, including somé form of notice and a hearing; Arnett v. Kennedy, ante, p. 164 (separate opinion of Powell, J.); Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972). In the present case, there can be no doubt, that under state law. both petitioner and respondent had property interests in the goods sought to be sequestered. Petitioner, as the vendee-debtor under an installment sales contract, had both title and possession of the goods subject to his contractual obligation to' cohtinuejbhe installment payments. Respondent, as the vendor-creditor, had a vendor’s lien on the goods as security for the unpaid balance.

The determination of what due process requires in a given context’ depends on a consideration of both the nature of the governmental function involved and the private interests affected. Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961); Goldberg v. Kelly, 397 U. S. 254, 263-266 (1970). The governmental function'in the instant case is to provide a reasonable and fair framework of rules'which facilitate commercial transactions on a credit basis. . The Louisiana sequestration statute is de- ' signed to protect thé legitimate interests of both creditor arid debtor. ' As to the creditor, there is the obvious risk that a defaulting debtor may conceal, destroy; or further encumber the goods and thus deprivé the creditor of his security. This danger is particularly acute where, as here, the vendor’s lien may be vitiated merely by trarisr ferring the goods from the debtor’s possession. In addi,tion, the debtor’s continued use of the goods diminishes their resale value. In these circumstances, a requirement of notice and an adversary hearing before sequestration would impose a' serious risk that a creditor could be deprived of his security.

Against this concern must be balanced the debtor’s real interest in uninterrupted possession of the goods, especially if the sequestration proves, to be unjustified. To be sure, repossession of certain items of personal property, even for a brief period, may cause significant inconvenience. But it can hardly be said that temporary deprivation of such property would necessarily place a debtor in a “brutal need” situatiori. Goldberg v. Kelly, supra; Arnett v. Kennedy, supra.

In my view, the constitutional guarantee df procedural due process is fully satisfied in cases of this kind where .state law requires, as a precondition to invoking the State’s aid to sequester property of a defaulting debtor, that the creditor furnish adequate security and make a specific factual showing before a neutral officer or magistrate of probable cause .to believe that he is entitled to the relief requested. An opportunity for an adversary hearing must then be accorded promptly after sequestration to determine the merits of the coritroyersy, with; the, burden of- proof on the creditor.

The Louisiana statute: sub judice satisfies these requirements arid differs materially from the Florida and Pennsylvania statutes in Fuentes. Those, statutes did' not require an applicant for a writ of replevin to make any factually convincing showing that the property was wrongfully detained or that he was entitled to the writ. Moreover, the Florida statute provided only that a post-seizure hearing be held eventually on the merits of the competing claims, and it required the debtor to initiate that proceeding. The Pennsylvania statute made no provision for a hearing at any time.

By contrast, the Louisiana statute applicable in Orleans Parish authorizes issuance of a writ of sequestration “only when the nature of the claim and the amount thereof, if any, and the grounds relied upon . . . clearly appear from specific facts shown by the petition verified by, or by' the. separate affidavit of, the petitioner, his counsel-or agent.” La. Code Civ. Proc. Ann., Art. 3501 (1961). The Louisiana statute also provides for an immediate hearing, and the writ is dissolved “unless the [creditor] proves the grounds upon which the writ was issued.” Art. 3506.

The Court’s opinion makes these points well, and I need not elaborate them further. In brief, the Louisiana statute satisfies the essential prerequisites of procedural due process and represents a fairer balancing of the interests of the respective parties than the statutes in Fuentes. I therefore agree that the Louisiana procedure should be sustained against petitioner’s challenge.

II

Mr. Justice Stewart reproves the Court for not adhering strictly to the doctrine of stare .decisis. Post, at 634^636. To be sure, stare decisis promotes the important considerations of consistency and predictability in judicial decisions and represents a wise and appropriate. policy in most instances. But that doctrine has never been thought to stand as an absolute bar to reconsideration of a prior decision, especially with respect to matters of constitutional interpretation. Where the Court errs in its construction of a statute, correction may always be accomplished by legislative action. Revision of a constitutional interpretation, on the other hand, is often impossible as a practical matter, for it requires the cumbersome route of constitutional amendment. It is thus not only our prerogative but also our duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question. And if the precedent or its rationale is of doubtful validity, then it should not stand. As Mr. Chief Justice Taney commented more than a century ago, a constitutional decision of this Court should be, “always open to discussion when it is supposed to have been founded in error, Jso] that [our] judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.” Passenger Cases, 7 How. 283, 470 (1849).

Moreover, reconsideration is particularly appropriate in the present case. To the extent that the Fuentes opinion established a Procrustean rule of a prior adversary hearing, it marked a significant departure from past teachings as to the meaning of due process. As the Court stated in Cafeteria Workers v. McElroy, 367 U. S., at 895, “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” The Fuentes opinion not only eviscerated that principle but also sounded a potential death knell for a panoply of statutes in thé commercial field. This fact alone justifies-a re-examination of its premises. The Court today reviews these at length, and I join its opinion because I think it represents a reaffirmation of the- traditipnal meaning of procedural due process:

Mr. Justice Stewart,

with whom Mr. Justice Douglas and Mr. Justice Marshall concur, dissenting.

The Louisiana sequestration procedure now before us is remarkably similar to the statutory provisions at issue in Fuentes v. Shevin, 407 U. S. 67 (1972). In both cases the purchaser-in-possession of the property .is not afforded any prior notice of the seizure or any opportunity to rebut the allegations of the vendor before the property is summarily taken from him by agents of the State. In both cases all that is required to support the issuance of the writ' and seizure of the goods is the filing of a complaint and an affidavit containing pro forma allegations in support of the seller’s purported entitlement to the goods in question. Since the procedure in both cases is completely ex parte, the state official charged with issuing the writ can do little more than determine the formal sufficiency of the plaintiff’s allegations before ordering the state agents to take the goods from the defendant’s possession.

The question before the Court in Fuentes was what ¡procedures are required by the Due Process Clause of the Fourteenth Amendmefit.when a State, at the behest of a private claimant, seizes goods in the possession of another, pending judicial resolution of the claimant’s assertion of superior right to possess the property. The Court’s analysis of this question began with the proposition that, except in exceptional circumstances, the deprivation of a property interest encompassed within the Fourteenth Amendment’s protection 'must be preceded by notice to the affected party and an opportunity to be heard. The Court then went on to hold that a debtor-vendee’s interest in the continued possession of purchased goods was “property” within the Fourteenth Amendment’s protection and that the “temporary, non-final deprivation of [this] property [is] ... a ‘deprivation’ in the terms of the Fourteenth Amendment.” 407 U. S., at 85. Accordingly, Fuentes held that such a deprivation of property must be preceded by notice to the possessor and by an opportunity for a hearing appropriate under the circumstances; Matters such as requirements for the posting of bond and the filing of sworn factual allegations, the length and severity of the deprivation, the relative simplicity of the issues underlying the creditor’s claim to possession, and the comparative “importance” or “necessity” of the goods involved were held to be relevant to determining the form of notice and hearing to be provided, but not to the constitutional need for notice and an opportunity for a hearing of some kind.

The deprivation of property in. this case is identical to that at issue in Fuentes, and the Court does not say otherwise. Thus, under Fuentes, due process of law permits Louisiana to effect this deprivation only after. notice to the possessor and opportunity for a hearing. Because i would adhere to the holding of Fuentes, I dissent from the Court’s opinion and judgment upholding Louisiana’s ex parte sequestration procedure, which provides that the possessor of the property shall never have advance notice or a hearing of any kind.

As already noted, the deprivation of property in this, case is identical to- that in Fuentes. But the Court says that this is a different case for three reasons: (1) the plaintiff who seeks the seizure of . the property must file an affidavit stating “specific facts” that justify the sequestration; (2) the state official who issues the writ of sequestration is a-judge instead of a clerk of the court; and (3) the issues that govern the plaintiff’s right to sequestration are limited to “the existence of a vendor’s lien and the issue of default,” and “[t]here is thus far less danger here that the seizure will be mistaken and a corresponding decrease in the utility of an adversary hearing,” ante, at 618. The Court’s opinion in Fuentes, however, explicitly "rejected each of these factors as a ground for a difference in decision.

The first two purported distinctions relate solely to the procedure by which the creditor-vendor secures the State’s aid in summarily taking goods from the purchaser’s possession. _ But so long as the Louisiana law routinely permits an ex parte seizure without notice to the purchaser, these procedural distinctions make no constitutional difference. •

The Louisiana affidavit requirement can be met by any plaintiff, who fills in the blanks on. the appropriate -form documents and presents the completed forms tó the court. Although the standárdized form- in this case called for somewhat more information than that required by the Florida and Pennsylvania statutes challenged in Fuentes, such ex parte allegations “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. Since his private gain is at' stake, the danger is all too great that his confidence in hi's cause will be misplaced. Lawyers and judges aré familiar with the-phenomenon of a party mistakenly but firmly, convinced that his view of the fácts arid-law will prevail, and-therefore quite willing to risk the costs of litigation.” 407 U. S., at 83.

Similarly, the fact that the official'who signs the writ after the ex parte application is a judge instead of a court clerk is of no constitutional significance. Outside Orleans Parish, this same function is performed by the court clerk. There is nothing to suggést that the nature of this duty was at all changed when the law wab amended to vest it in a judge rather than a clerk in this one parish. Indeed, the official comments declare that this statutory revision was intended to “mak[e] no change in the law.” Whether the issuing functionary be a judge or a court clerk, he can in any event do no more than ascertain the formal sufficiency of the plaintiff’s allegations, after which the issuance of the summary writ becomes a. simple ministerial act.

The third distinction the Court finds between this case and Fuentes is equally insubstantial. The Court-says the issues in this case are “particularly suited” to ex. parte determination, in contrast tó the issues in Fuentes, which were “inherently subject to factual determination and adversarial input,” ante, at 617, 618. . There is, however, absolutely mo support for this purported distinction. In this case the Court states, the factual issues as “the,: existéñce.of a vendor’s lien and the issué.of default.” Ante,cat 618. The issues upon which replevin dépended in Fuentes were no different; the creditor-vendor needed only, to establish his security interest and the debtorvendee’s default. As Mr. Justice White acknowledged in his denies'dissent, the essential issue at any hearing would be whether “there is reasonable basis for his [the .creditor-vendor’s] claim of default.” 407 U. S., at 99-100. Thus, the Court produces this final attempted distinction out of whole cloth.

Moreover, Fuentes held that the. relative complexity, of the issues in dispute is not relevant to determining whether a prior hearing is required by due procesé'. “The issües 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. But it certainly cannot undercut the right to a prior hearing of some kind.” Id., at 87 n. 18 (citation omitted). Similarly, the probability óf success on the factual issue does not affect the right to prior notice and an opportunity to be heard.

“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. 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.” Id., at 87 (internal quotation marks and citation omitted).

In short, this case is constitutionally indistinguishable from Fuentes v. Shevin, and the Court today has simply rejected the reasoning of that case and adopted instead the analysis of the. Fuentes dissent. In light of all that has been written in Fuentes and in this case, it. seems., pointless to prolong the debate. Suffice it to say that I would reverse the judgment before us because the Louisiana sequestration procedure fails to comport with the requirements of due process of law.

I would add, however, a word of concern. It seems to me that unless we respect the constitutional decisions of this Court, we can hardly expect that others will do so. Cf. Roofing Wholesale Co. v. Palmer, 108 Ariz. 508, 502 P. 2d 1327 (1972). A substantial departure from precedent can only be justified, I had thought, in the light of experience with the application of the rulé to be abandoned or in the light Of an altered historic environment. Yet the Court today has unmistakably overruled a considered decision of this Court that is barely two years old, without pointing to any change in either societal perceptions or basic constitutional understandings that might justify this total disregard of stare decisis.

The Fuentes decision was in a direct line of'recent cases in this. Court that have applied the procedural due process commands of the Fourteenth Amendment to prohibit governmental action that deprives a person of a statutory or contractual property interest with „no advance notice or opportunity- to be heard. In the short time that has elapsed since the Fuentes case was decided, many state and federal courts have followed it -in assessing the constitutional validity of state replevin statutes and other comparable state laws. No data have been brought to our attention to indicate that these decisions, granting to otherwise defenseless consumers the simple rudiments of due process of law, have worked any untoward change in the consumer credit, market or in other commercial relationships. The only perceivable change that has occurred since Fuentes' is in the makeup of this Court.

A basic change in the law upon a ground no firmer than. a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception coujd do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.

Mr. Justice Brennan is in agreement that Fuentes v. Shevin, 407 U. S. 67 (1972), requires reversal of the judgment of the Supreme Court of Louisiana.

       The motion asked for dissolution of the writ with respect to the refrigerator, stove, and washer. For some reason, unexplained by the parties, the motion was not addressed to the stereo.

       There is some dispute between the parties as to when the writ was actually executed by the sheriff. The sheriff’s return, furnished by petitioner but apparently not in the record below, indicates that execution was on the 18th of February, rather than on the 7th. The Louisiana Supreme Court assumed that the writ was executed on the 7th. Because we see no legal consequence attaching to a choice of dates, we assume for purposes ■ <ff decision that the writ was executed on the 7th.

       Article 2373 and other pertinent provisions of the Code, including those referred to in the text, are set out in the Appendix to this opinion.

       Historically, the writ would issue only if the creditor had “good reason to fear” that' the debtor would damage, alienate or waste the goods, and the creditor was required to show the grounds for such fear. Under present law, however, the apprehension of the creditor is no longer the issue, and the writ may be obtained when the goods are within the power of the debtor. Reporter’s Comment (a) to La. Code Civ. Proe. Ann., Art. 3571. The necessity of showing such “power” is not irrelevant, because the vendor’s privilege will not lie against goods not within the “power” of the debtor, Margolin, Civil Law, Vendor’s Privilege, 4 Tul. L. Rev. 239 (1930); H. Daggett, On Louisiana Privileges and Chattel Mortgages §51 (1942).

       Articles 282 and 283 of the Code provide, generally, that the court clerk may issue writs of sequestration. But Art, 281 confines the authority to the judge in Orleans Parish. There is no dispute in this case that judicial authority for the writ was required and that it was obtained as the statute requires. The validity of procedures obtaining in áreas, outside Orleans Parish is not at issue.

       As previously noted, the judgment prayed for in this, case-was in the amount of $574.17. ^Grant was ordered to furnish security in the amount of $1,125.

       When a writ is issued by the judge, it is served upon .the debtor by the sheriff, Art. 3504, who thereafter becomes responsible for the property's safekeeping. See Johnson, Attachment and Sequestration: Provisional Remedies Under the Louisiana Code of Civil-Procedure, 38 Tul. L. Rev. 1, 21-22 (1963). The plaintiff-creditor, however, see Art. 3576, may himself-take possession of the goods if the defendant within 10 days does not secure possession of the goods by posting his own bond as permitted by Art. 3507, but he has no right to sell the goods until final judgment on the merits. Art. 3510.

       Damages would compensate for the period during which the buyer was deprived of the use of the property, but are not restricted to pecuniary loss. They may encompass injury to social standing or reputation as well as humiliation and mortification. Johnson, supra, n. 7, at 28.

       The debtor’s bond necessary to -repossess the property “shall exceed by one-fourth the value of the property as determined by the court, or shall exceed by one-fourth the amount of the claim, whichever is the lesser.”" Art. 3508.

       Petitioner relies particularly on: Covey v. Town of Somers, 351 U. S. 141 (1956); New York v. New York, N. H. & H. R. Co., 344 U. S. 293 (1953); Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950); Griffin v. Griffin, 327 U. S. 220 (1946); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941); West Ohio Gas Co. v. Pub. Util. Comm’n, 294 U. S. 63 (1935); United States v. Illinois Central R. Co., 291 U. S. 457 (1934); Southern R. Co. v. Virginia, 290 U. S. 190 (1933); Goldsmith v. Board of Tax Appeals, 270 U. S. 117 (1926); Coe v. Armour Fertilizer Works, 237 U. S. 413 (1915); Londoner v. Denver, 210 U. S. 373 (1908); Central of Georgia R. Co. v. Wright, 207 U. S. 127 (1907); Roller v. Holly, 176 U. S. 398 (1900); Hovey v. Elliott, 167 U. S. 409 (1897); Scott v. McNeal, 154 U. S. 34 (1894); Windsor v. McVeigh, 93 U. S. 274 (1876); Ray v. Norseworthy, 23 Wall. 128 (1875); Rees v. City of Watertown, 19 Wall. 107 (1874); Baldwin v. Hale, 1 Wall. 223 (1864). Brief for Petitioner 10-11.

       Conceding that the multiple seizure might cause irreparable damage to a business, the Court responded:
      “The impact of the initiation of judicial proceedings is often serious. Take the case of the grand jury. It returns an indictment against a man without a hearing. It does not determine his guilt; it only determines whether there is probable cause to believe he is guilty. But that determination is conclusive on the issue of probable cause. As a result the defendant can be arrested and held for trial. See Beavers v. Henkel, 194 U. S. 73, 85; Ex parte United States, 287 U. S. 241, 250. The impact of an indictment is on the reputation or liberty , of a man. The same is true where a prosecutor files an information charging violations of the law. The harm to property and business can also be incalculable by the mere institution of proceedings. Yet it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet it -is not a requirement of due process that there be judicial inquiry before discretion can be exercised.” 339 U. S., at 599.

       The approval of a writ of sequestration is- not, as petitioner, contends, a. mere ministerial' act. “Since a writ of sequestration issues without a hearing, specific' facts as to the grounds relied upon for issuance must be contained in the verified petition in order that the issuing judge can .properly evaluate the grounds.” Wright v.
        Hughes, 254 So. 2d 293, 296-297 (La. Ct. App. 1971) (on rehearing). To the same, effect is Hancock Bank v. Alexander, 256 La. 643, 237 So. 2d 669 (1970), where the court held that a simple allegation of indebtedness for money due on an automobile, where no deed of trust was referred to or produced, did not'satisfy the “specific facts” test. The court*stated:

        “Strict application of the rules established for the issuance of com servatory writs has been-uniformly required by the Courts, in the past. It is implicit in those remedies that they should not be.availed of unless the conditions which permit them exist; that is to say, it is a prerequisite to- their issuance that proper grounds bp alleged and sworn to.” Id., at 653-654, 237 So. 2d, at 672. (Emphasis added.) Zion Mercantile Co. v. Pierce, 163 La. 477, 112 So. 371 (1927) , upon which, petitioner relies, is not to the contrary: The Louisiana court merely held there that it is not necessary to “file” papers requesting the writ with the clerk, or. pay court costs, before the. judge is empowered to issue the writ.

       The advisability of requiring prior notice and hearing before repossession has been under study for several years. A number of possibilities have been put forward to modify summary creditor remedies, whether taken through some form of court process or effected by self-help under Art. 9 of the Uniform Commercial Code, §9-503. Influenced by Sniadach, and providing preseizure notice and hearing, are two model acts drafted by the National Consumer Law Center: National Consumer Act §§5.206-5.208 (1970), and Model Consumer Credit Act §7.205 (1973). Other similar reforms are reflected in the Report of the National Commission on Consumer Finance, Consumer Credit in the United States 30-31 (1972); the Wisconsin Consumer Act, Wis. Stat. Ann. §§ 421.101-427.105 (special pamphlet 1973); and the amendments to the .Illinois Replevin Statute, Public Act 78-287, Ill. Laws 1973. Looking in the other direction and leaving summary procedures intact for the most part are the National Conference of Commissioners on Uniform State Laws, Committee on Uniform Consumer Credit Code, Uniform Consumer Credit Code, Working Redraft No. 5, Nov. 1973, §§5.110, 5.112,- .and the Permanent Editorial Board for the Uniform Commercial Code, Review Committee for Art. 9 of the Uniform Commercial Code, Final Report, §9-503 (Apr. 25, 1971), together with revised Art. 9 of the U. C. C., 1972 Official Text and Comments, § 9-503.
      As revealed in the various studies and proposals, the principal question yet to be satisfactorily answered is the impact of prior notice and hearing on the price of credit, and, more particularly, of the mix of procedural requirements necessary to minimize the cost. The commentators are in the throes of debate, see, e. g.,. Symposium, Creditors’ Rights, 47 S. Cal. L. Rev. 1-164 (1973), and basic questions remain unanswered. See generally Note, Self-Help Repossession; the Constitutional Attack, the Legislative Response, and the Economic Implications, 62 Geo. L. J. 273 (1973).
      We indicate no view whatsoever on the desirability of one or more of the proposed reforms. The uncertainty evident in the current debate suggests caution in the adoption of an inflexible constitutional rule. Our holding in this case is limited to the constitutionality of the Louisiana-sequestration procedures.

       We are advised by counsel for petitioner of a tide of cases following Fuentes and are cautioned • that affirmance in this case would set off a riptide with considerable consequences.' We perceive no such result. Our decision will not affect recent cases dealing with garnishment or- summary self-help remedies of secured creditors or landlords. Nor is it at all clear, with an exception or two, that the reported cases invalidating replevin or similar statutes, dealt with situations where there was judicial supervision of seizure or foreclosure from the outset.

       The.Court outlined the deficiencies of the statutes in Fuentes:

      “There is [under the Florida statute] no requirement that the applicant make a convincing showing before the seizure 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 . . . .” 407 U. S., at 73-74 (emphasis added).
      .The Court noted that the Pennsylvania statute required even less than the Florida statute, since the party seeking the writ “need not even formally allege that he is lawfully entitled to the property.” Id., at 78. All that was required was the filing of an “ ‘affidavit of the value of the property to be replevied.’” Ibid. Moreover, the Pennsylvania law did “not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied, property.” Id., at 77.

       See St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 93 (1936) (Stone and Cardozo, JJ., concurring in result); Burnet v. Coronadlo Oil & Gas Co., 285 U. S. 393, 405, 406-408 (1932) (Brandéis, J., dissenting). For the view that stare decisis need not always apply even to questions of statutory interpretation, see Boys Markets v. Retail Clerks Union, 398 U. S. 235, 255 (1970) (Stewart, J., concurring).

       The Fuentes opinion, relied primarily on Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). That case involved a prejudgment garnishment of-wages in which the creditor had no preexisting property interest.' It is readily distinguishable from the instant case where the creditor does have a pre-existing property interest as a result of the vendor’s lien which attached upon execution of the installment sales contract. Indeed, depending on the number of installments’which have been paid, the creditor’s interest may often be greater than the ¡debtor’s. Thus, we deal here with mutual property interests, both of which are entitled to be safeguarded. Fuentes .overlooked this vital point.
      ".Ini addition, the Court recognized in- Sniadach that prejudgment garnishment of wages could as á practical matter “impose tremendous hardship” and .“drive a wage-earning family to the wall.” Id., at 340/341-342. By contrast, there is no basis for assuming that-sequestration of a debtor’s goods would hecessarily place him in such a “brutal need” situation.

       For a discussion of the far-reaching implications of the Fuentes rationale, see Clark & Landers, Sniadach, Fuentes and Beyond: The Creditor Meets the Constitution, 59 Va. L. Rev. 335 (1973). The authors suggest that Fuentes could require invalidation of many summary creditor remedies in their present form. .

       The Louisiana Supreme Court held that Fuentes did not govern the present case. Essentially,. that court held that because the Louisiana vendor’s privilege is defeated if the vendee alienates the property over which the vendor has the privilege, this case falls within the language in Fuentes that “[t]here may be cases in which a creditor could make a showing of immediate danger tnat a debtor will destroy or conceal disputed goods.” Fuentes v. Shevin, 407 U. S. 67, 93 (1972). The Court today quite correctly-does not embrace this rationale. In discussing the “ ‘extraordinary situations’ ” that might justify the summary seizure of goods,- the Fuentes opinion stressed that these situations “must be truly unusual.” Id,., at 90. Sjfecifically, it referred to “special situations demanding prompt action.” Id., at 93. In effect, the Louisiana Supreme Court held that all vendor-créditors in the State can be conclusively presumed to be in this “special” situation, regardless of whether the individual vendor could make a showing of immediate danger in his particular case. But if the situation of all such vendors in a’ State could be conclusively presumed to meet the ."extraordinary,” “unusual,” and “special”' conditions referred to in Fuentes, the basic constitutional rule of that case would be wholly obliterated in the State.

       407 U. S., at 90-93.

       La. Code Civ. Proc. Ann., Art. 281 (1961).

       The Louisiana authorities cited by the Court are not to the contrary. Wright v. Hughes, 254 So. 2d 293 (La. Ct. App. 1971), and Hancock Bank v. Alexander, 256 La. 643, 237 So. 2d 669 (1970), stand only for the proposition that a writ should not issue unless the sworn allegations are formallj sufficient, which may mean nothing more than that the proper standardized form be completely filled in.

       See, e. g., North Dakota Board of Pharmacy v. Snyder’s Drug Stores, 414 U. S. 156 (1973); Brown v. Board of Education, 347 U.S. 483 (1954).

       See, e. g., Goldberg v. Kelly, 397 U. S. 254 (1970); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); and Bell v. Burson, 402 U. S. 535 (1971).

       See, e. g., Turner v. Colonial Finance Corp., 467 F. 2d 202 (CA5 1972); Sena v. Montoya, 346 F. Supp. 5 (NM 1972); Dorsey v. Community Stores Corp., 346 F. Supp. 103 (ED Wis. 1972); Thorp Credit, Inc. v. Barr, 200 N. W. 2d 535 (Iowa 1972); Inter City Motor Sales v. Common Pleas Judge, 42 Mich, App. 112, 201 N. W. 2d 378 (1972); and Montoya v. Blackhurst, 84 N. M. 91, 500 P. 2d 176 (1972).

       Although Mr. Justice Powell and Mr. Justice' Rehnquist were Members of the Court at the time that Fuentes v. Shevin was announced, they were not Members* of the Court when that case was argued, and they did not participate in its “consideration or decision.” 407 U. S., at 97.


source: Caselaw Access Project

author: . Mr. Justice Rehnquist Mr: Justice Stewart, Mr. Justice Douglas,

license: Public Domain

text:
    DONNELLY v. DeCHRISTOFORO
    No. 72-1570.
    Argued. February 20, 1974
    Decided May 13, 1974
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C/-J.¿ and Stewart, White, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring opinion, in which White, J., joined, post, p. 648. Douglas, J., filed a dissenting opinion, in Part II of which Brennan and Marshall, JJ., joined, post, p. 648.

      David A. Mills, Assistant Attorney General of Massachusetts, argued the cause for petitioner. With him on the brief were Robert H. Quinn, Attorney General, John J. Irwin, Jr., and Barbara A. H. Smith, Assistant Attorneys General.

      Paul T. Smith argued the cause for respondent. With him on the brief were Harvey R. Peters and Jeffrey M. Smith

        Melvin B. Lewis filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.

   . Mr. Justice Rehnquist

delivered the opinion of the Court.

. Respondent was tried before a jury in Massachusetts Superior Court and convicted of first-degree murder. The jury recommended that the death penalty not be imposed, and respondent was sentenced to life imprisonment. He appealed to the Supreme Judicial Court of Massachusetts contending, inter alia, that certain of the prosecutor’s remarks during closing argument deprived him of his constitutional right to a fair trial. The Supreme Judicial Court' affirmed. That court acknowledged that the prosecutor had made improper remarks, but determined that they were not so prejudicial as to require reversal.

Respondent then sought habeas corpus relief in the United States District Court for the District of Massachusetts. The District Court denied relief, stating: “[T]he prosecutor’s arguments were'not so prejudicial as to deprive [DeChristoforo] of his constitutional right to a fair trial.” The Court of Appeals for the First Circuit reversed by a divided vote. The majority held that the prosecutor’s remarks deliberately conveyed the false impression that respondent had unsuccessfully sought to plead to a lesser charge and that this conduct was a denial of due process. We granted certiorari, 414 U. S. 974 (1973), to consider whether such remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent’s due process rights. We hold they were not and so reverse.

I

Respondent and two companions were indicted for the first-degree murder of Joseph Lanzi, a passenger in the car in which the defendants were riding. Police had stopped the car at approximately 4 a. m. on April 18, 1967, and had discovered Lanzi’s dead body along with two firearms, one of which had been fired. A second gun, also recently fired, was found a short distance away. Respondent and one companion avoided. apprehension at that time, but the third defendant was taken into custody. He later pleaded guilty to second-degree murder.

Respondent and the other defendant, Gagliardi, were finally captured and tried jointly, The prosecutor made little claim that respondent fired any shots but argued that he willingly assisted in the killing. Respondent,' on the other hand, maintained that he was an innocent passenger.’ At the close of the evidence but before final argument, Gagliardi elected to plead guilty , to a charge of second-degree murder. The court advised the jury that Gagliardi had pleaded guilty and that respondent’s trial would continue. Respondent did not seek an instruction that the jury was to draw no inference from the plea, and no such instruction was given.

Respondent’s claims of constitutional error focus on two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury. The first involved the expression of a personal opinion as to guilt, perhaps offered to rebut a somewhat personalized argument by respondent’s counsel. The majority of the Court of Appeals agreed with the Supreme Judicial Court of Massachusetts that this remark was improper, but declined to rest its holding of a violation of due process on that remark. It turned to a second remark that it deemed “more serious.”

The prosecutor’s second challenged comment was directed at respondent’s motives in standing trial: “They [the respondent and his counsel] said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree- murder.” Respondent’s counsel objected immediately to the statement and later sought an instruction that the remark was improper and should be disregarded. The court then gave the following instruction:

“Closing arguments are not evidence for your consideration. ...
. “Now-in his. closing, the District Attorney, I noted, made a statement: T don’t know what they want you to do by way of a verdict. They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree' murder.’ There is no evidence of that whatsoever, of course, you are instructed to disregard that statement made by the District Attorney.
“Consider the case as though no such statement was made.” '

The majority of the Supreme Judicial Court of Massachusetts, though again not disputing that the remark was improper, held that it was not so prejudicial as to require a mistrial and further stated that the trial judge’s instruction “was sufficient to safeguard the defendant’s rights.” Despite this decision and the District Court’s denial of a writ of habeas corpus, the Court of Appeals found that the commént was potentially so misleading and prejudicial that it deprived respondent of a constitutionally fair trial.

Ths Court of Appeals reasoned that the jury would be naturally curious about respondent’s failure to plead guilty and that this curiosity would be heightened by Gagliardi’s decision to plead guilty at the close of the evidence. In this context, the court thought, the prosecutor’s comment that respondent hoped for conviction on a lesser offense would suggest to the jury that respondent had sought to plead guilty but had been refused. Since the prosecutor was in a position to know such facts, the jury may well have surmised that respondent had already admitted guilt in an attempt to secure reduced charges. This, said the Court of Appeals, is the inverse of, but a parallel to, intentional suppression of favorable evidence. The prosecutor had deliberately misled the jury, and even if the statement was made thoughtlessly, “in a first degree murder case there must be some duty on a prosecutor to be houghtful.” Therefore, the District Court had erred in denying respondent’s petition.

II

The Court of Appeals in this case noted, as petitioner urged, that its review was “the narrow one of due process, and not the broad exercise of supervisory power that [it] would possess in regard to [its] own trial court.” We regard this observation as important for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a “failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. California, 314 U. S. 219, 236 (1941). We stated only this Term in Cupp v. Naughten, 414 U. S. 141 (1973), when reviewing an instruction given in a state court:

“Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,’. but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment:”

This is not a case, in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel, Argersinger v. Hamlin, 407 U. S. 25 (1972), or in which the prosecutor’s remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. Griffin v. California, 380 U. S. 609 (1965). When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them. But here the claim is only that a prosecutor’s remark about respondent’s expectations at trial by itself so infected the trial with unfairness as to make the resulting conviction a denial of due process. We do not believe that examination of the entire proceedings in this case supports that contention.

Conflicting inferences have been drawn from the prosecutor’s statement by the courts below. Although thé Court of Appeals stated flatly' that “the prosecuting attorney turned Gagliardi’s plea into a telling stroke against [DeChristoforo]” by implying respondent had offered to plead guilty as well, the dissent found the inference to be “far less obvious.” The Supreme Judicial Court of Massachusetts stated that it considered the. same argument illogical:

“It is not logical to conclude that the jury would accept any implied argument of the prosecutor that, because one of the men whom the defendant blamed for the murder had pleaded guilty, the defendant was any less firm in his assertion that he himself was not guilty of any crime whatsoever.”

Thus it is by no means clear that the jury did engage in the hypothetical analysis suggested by the majority of the Court of Appeals, or even probable that it would seize such a comment out of context and attach this particular meaning to it. Five Justices of the Supreme Judicial Court of Massachusetts and at least one federal judge have all confessed difficulty in making this speculative connection.

In addition, the trial court took special pain's to correct any impression that the jury could consider the prosecutor’s statements as evidence in the case. . The prosecutor, as is customary, had previously told the jury that his argument was not evidence, and the trial judge specifically re-emphasized that point. Then the judge directed the jury’s attention to the remark particularly challenged here, declared it to be unsupported, and admonished the jury to ignore it. Although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character.

In Cupp v. Naughten, supra, the respondent had challenged his conviction on the ground that a “presumption of truthfulness” instruction, given by the state trial court, had deprived him of the presumption of innocence and had shifted the State’s burden of proof to himself. Holding that the instruction, although perhaps not advisable, did not violate due process, we stated:

“In determining the effect of this instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of .exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.”

Similarly, the prosecutor’s remark here, admittedly an ambiguous one, was but one moment in an extended trial and was followed by specific disapproving instructions. Although the process of constitutional line drawing in this regard is necessarily imprecise, we simply do not believe that this incident made respondent’s trial so fundamentally unfair as to deny him due process.

m

We do not find the cases cited by the Court of Appeals to require a different result. In Miller v. Pate, 386 U. S. 1 (1967), the principal case relied upon, this Court held that a state prisoner was entitled to federal habeas relief upon a showing that a pair of stained undershorts, allegedly belonging to the prisoner and repeatedly described by the. State during trial as stained with blood, was in fact stained with paint. In the course of its opinion, this Court said:

“It .was further established that counsel for the prosecution had known at the time of the trial that the shorts were stained with paint. . . .
“. . . The record of the petitioner’s trial reflects the prosecution’s consistent and repeated misrepresentation that People’s Exhibit 3 was, indeed, ‘a .garment heavily stained with blood.’ ” Id., at 6.

A long series of decisions in this Court, of course, had established the proposition that the “Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.” Id., at 7. The Court in Miller found those cases controlling,

We countenance no retreat from that proposition in observing that it falls far short of embracing the prosecutor’s remark in this case. The “consistent and repeated misrepresentation” of a dramatic exhibit in evidence may profoundly impress a jury and may have a significant impact on the jury’s deliberations. Isolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that- a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.

The Court of Appeals’ reliance on Brady v. Maryland, 373 U. S. 83 (1963), is likewise misplaced. In Brady, the prosecutor had withheld evidence, a statement by the petitioner’s codefendant, which was directly relevant to the extent of the petitioner’s involvement in the crime. Since the petitioner had testified that his codefendant had done the actual shooting and since the petitioner’s counsel was not contesting guilt but merely seeking to avoid the death penalty, evidence of the degree of the petitioner’s participation was highly significant to the primary jury issue. As in Miller, manipulation of the evidence by the prosecution was likely to have an important effect on the jury’s determination. But here there was neither the introduction of specific misleading evidence important to the prosecution’s case in chief nor the nondisclosure of specific evidence valuable to the accused’s defense. There were instead a few brief sentences in the prosecutor’s long and expectably hortatory closing argument which might or might not suggest to a jury that the respondent had unsuccessfully sought to bargain for a lesser charge. We find nothing-in Brady to suggest that due process is so easily denied.

The result reached by the Court of Appeals in this case leaves virtually meaningless the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct held in Miller and Brady, supra, to amount to a denial of constitutional due process. Since we believe that distinction should continue to be observed, we reverse the, judgment of the Court of Appeals. .

It is so ordered.

Mr: Justice Stewart,

with whom Mr. Justice White joins, concurring.

I agree with my Brother Douglas that, when no new principle of law is presented, we should generally leave undisturbed the decision of a court of appeals that upon the particular facts of any case habeas corpus relief should be granted — or denied. For this reason I think it was a mistake to grant a writ of certiorari in this case, and I would now dismiss the writ as improvidently granted.

We are. bound here, however, by the “rule cf four.” That rule ordains that the votes of four Justices are enough to grant certiorari and bring a ease before the Court for decision on the merits. If. as many as four Justices remain so minded after oral argument, due adherence to that rule requires me to address the merits of a case, however strongly I may feel that it does not belong in this Court. See Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 559 (separate opinion of Harlan, J.).

Upon this premise, I join the. Court’s opinion.

Mr. Justice Douglas,

dissenting.

• The function of the prosecutor under the Federal Constitution is not to tack as many , skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial. . As stated by the Court in Berger v. United States, 295 U. S. 78, 88:

■ “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its.obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that'it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He- may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful- conviction as it is to use every legitimate means to bring about a just one.”

We have here a state case, not a federal one; and the prosecutor is a state official. But we deal with an aspect of a fair trial which is implicit in the Due Process Clause of the Fourteenth Amendment by which the States are bound. Chambers v. Mississippi, 410 U. S. 284; Sheppard v. Maxwell, 384 U. S. 333; Turner v. Louisiana, 379 U. S. 466; Irvin v. Dowd, 366 U. S. 717.

In this case respondent was charged with first-degree murder and was convicted in the state court by a' jury. At no time did he seek to plead guilty to a lesser offense. It is stipulated:

“[A]t no time did defendant seek to plead guilty to any offense; at' no time did the Commonwealth seek to solicit or offer to accept a plea; and at all times defendant insisted upon a trial.”

A codefendant pleaded guilty to second-degree murder and the jury was advised of the fact.

Ar to the guilt of respondent the prosecutor told the jury-: “1 honestly and sincerely believe that there is no doubt in this case, none whatsoever.”

. And he went on to say: “1 quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.”

These statements in the setting of the case and in light of the fact that the jury knew the codefendant had pleaded -guilty to second-degree murder, are a subtle equivalent of a statement by the prosecutor that respondent sought a lesser penalty. Counsel for respondent immediately objected but the court at the time did not admonish the prosecutor or tell the jury to disregard the statement, though it did cover the matter later in its general instructions.

I

As a matter of federal law the introduction of a withdrawn plea of guilty is not admissible evidence, Kercheval v. United States, 274 U. S. 220. As a matter of procedural due process the Confrontation Clause of the Sixth Amendment, applicable to the States by reason of the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, would bar a person from testifying that the defendant had sought a guilty plea unless the right of cross-examination of the witness was afforded/ id., at 406-408. That requirement of procedural due process should be sedulously enforced (save for the recognized exceptions of dying declarations and the like, id., at 407) lest the theory that the end justifies the means gains further footholds here. The prosecutor is not a witness; and he should not be permitted to-add to the record either by subtle or gross improprieties. Those who have experienced the full thrust of the power of government when leveled against them know that the only protection the citizen has is in the requirement for a fair trial. The assurance of the Court that we make no retreat from constitutional government by today’s decision has therefore a hollow ring.

Activist judges have brought federal habeas corpus into disrepute at the present time. It is guaranteed by the Constitution. It is a built-in restraint on judges — both state and federal; and it is also a restraint on prosecutors who are officers of the court. Our activist tendencies should promote not law and order, but constitutional law and order. Judges, too, can be tyrants and often have been. Prosecutors are often eager to take almost any shortcut to win, yet as I have said they represent not an ordinary party but We the People. As I have noted, their duty is as much “to refrain from improper methods calculated to produce a wrongful conviction as it is to use e\ ery legitimate means to bring about a just one,” Berger v. United States, supra, at 88.

It is, I submit, quite “improper” for a prosecutor, to insinuate to the jury the existence of evidence not in the record and which could not be introduced without the privilege of cross-examination.

II

The Supreme Judicial Court of Massachusetts had difficulty with this case when it came before it on direct appeal, two Justices, which included the Chief Justice, dissenting, Commonwealth v. DeChristoforo, - Mass. J — , 277 N. E. 2d 100. The Court of Appeals was also divided, 473 F. 2d 1236. Our federal district courts and courts of appeals are much closer to law administration in the respective States than are we in Washington, D. C. They are responsible federal judges who know the Federal Constitution as well as we do. Their error in issuing the Great Writ — or in refusing to do so— would in my judgment have, to be egregious for us to grant a petition for certiorari. When a court of appeals honors the Constitution by granting the Great Writ or in its solemn judgment denies it, we should let the matter rest there, save for manifest'error.

I would affirm the judgment below.

Mr. Justice Brennan and Mr. Justice Marshall would affirm the judgment below for the reasons stated in Part II of the dissent of Mr. Justice Douglas.

       Respondent and his codefendants were also indicted for illegal possession of firearms, and respondent received a four- to five-year sentence on that charge. The conviction is in no way related to the issues before the Court in this case.

        Commonwealth v. DeChristoforo, Mass. —, 277 N. E. 2d 100 (1971).

       App. 231.

         473 F 2d 1236 (1973).

       The trial court stated:
      “Mr. Foreman, madam and gentlemen of the jury. You will notice that the defendant Gagliardi is not in the dock. He has pleaded ‘guilty,’ and his case has been disposed of.
      “We will, therefore, go forward with the trial of the case of Commonwealth vs DeChristoforo.” App. 99.

       The challenged remark was: “I honestly and .sincerely believe that there is no doubt in this case, none whatsoever.” Id., at 130.

       The Court of Appeals noted: “[A]t least' the jury knows that the prosecutor is an advocate and it may be expected, to some degree, to discount such remarks as seller’s talk.” 473 F. 2d, at 1238.

       App. 129.

       No instruction was sought at .the time although the court apparently was willing to give one. The. trial judge later told counsel: “[H]ad there been a motion made by. you at that time to have me instruct the jury along the lines of eliminating that from their minds, or something of that nature, I certainly would have complied, because I did consider at the time the argument was beyond the grounds of complete propriety, but certainly far from being grounds for a mistrial.” Id,., at 133.

        Id., at 143-144.

       — Mass., at —, 277 N. E. 2d, at 105.

       473 F. 2d, at 1240.

        Id., at 1238.

       414 U. S., at 146.

       Respondent does suggest that the prosecutor’s statements may have deprived him of the right to confrontation. See Pointer v. Texas, 380 U. S. 400 (1965). But this argument is without merit, for the prosecutor here simply stated his own opinions and intro- • duced no statements made by persons unavailable for questioning at trial.

       473 F. 2d, at 1239.

        Id., at 1241 (Campbell, J., dissenting).

       App. 157.

        Id., at 119.

       See n. 10, supra.

       414 U. S., at 146-147.

       See, e. g., Mooney v. Holohan, 294 U. S. 103 (1935); Napue v. Illinois, 360 U. S. 264 (1959).

       We do.not, by this decision, in any way condone.prosecutorial misconduct, and we believe' that trial courts, by admonition and instruction, api appellate courts, by proper exercise of their supervisory power, will continue to discourage it. We only say that, in the circumstances of the case, no prejudice amounting to a denial of constitutional due process was shown.

      Chief Justice Tauro said in dissent:
      “The prosecutor’s argument in the instant case permitted or perhaps even suggested an inference that the defendant had conceded his guilt and was merely hoping for something a little less than a verdict of murder in the first degree. This diminished his chance for a fair trial to a far greater degree than would have the publication in a newspaper of his criminal background. Unlike a newspaper, the prosecutor ostensibly speaks with the authority of his office. The prosecutor’s ‘personal status and his role as a spokesman for the government tend[ed] to give to what he . . .. [said] the ring of authenticity' . . . tend[ing] to impart an implicit stamp of believability.’ Hall v. United States, 419 F. 2d 582, 583-584 (5th Cir.). The prosecutor’s remarks probably, called for a mistrial. In any event the judge’s failure to instruct the jury adequately and with, sufficient force to eliminate the serious prejudice to the .defendant constitutes fatal error. Moreover, the judge’s routine final instructions to the jury were far from sufficient, to correct the error.' By then the defendant’s position had. so deteriorated that his chances for a fair deliberation of his fate by the jury were virtually eliminated.” — Mass., at —, 277 N. E. 2d, at 112.