Before Swygert, Chief Judge and Parsons and Lynch, District
The opinion of the court was delivered by: Per Curiam.
The above cause comes before this three-judge district court
for determination of whether or not the operation of Section 1 of
the Illinois Garnishment Act, Ch. 62, Ill.Rev.Stat. § 33 (1969)
in conjunction with judgments obtained by confession in
accordance with Ch. 110, Ill.Rev.Stat. Sec. 50(3) (1969) violates
the due process and equal protection clauses of the 14th
Amendment of the United States Constitution. Jurisdiction of the
above cause is grounded upon 28 U.S.C. § 1343 and 42 U.S.C.
Sec. 1983. See Lynch v. Household Finance Corp.,
405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).
The named plaintiffs have filed suit on their own behalf and
seek a declaration of this Court pursuant to Rule 23, Federal
Rules of Civil Procedure, to proceed on behalf of all persons who
have executed notes or other forms of indebtedness which contain
a clause which authorizes the entry of judgment by confession and
who are, therefore, subject to garnishment on their non-wage
assets without notice.
In 1968 William L. Scott and Lula J. Scott, executed an
installment sales contract and judgment note for the purchase of
a vacuum cleaner from Custom King System. The contract and note
contained a "cognovit" clause which purported to authorize the
holder of the note to confess and enter judgment against the
obligor without service of process. After the plaintiffs ceased
payment on the note, the defendant here, Puritan Thrift Plan,
Inc., which subsequently obtained possession of the "paper",
confessed judgment against the plaintiffs in the Circuit Court of
Cook County. The judgment, in accordance with the applicable
state statute, was obtained without notice to the plaintiffs.
On September 25, 1970, the defendant, Puritan Thrift, on the
basis of the cognovit judgment directed defendant Danaher to
issue a non-wage garnishment summons against the plaintiffs'
bank. The first notice plaintiffs received of the garnishment
action against them occurred when their bank advised them that a
garnishment summons had been served upon the bank and that the
funds of their account would be "frozen" pending disposition by
Subsequently plaintiffs filed the complaint in the instant
cause of action seeking various forms of relief on behalf of
themselves and all other persons similarly situated. The
plaintiffs successfully moved that a three-judge district court
be convened in accordance with 28 U.S.C. § 2281 et. seq.
The crux of plaintiffs' contention is that the invocation of
Section 1 of the Illinois Garnishment Act, Ch. 62, Ill.Rev.Stat.
§ 33 et seq. (1969) to satisfy judgments obtained by confession
in accordance with Ch. 110, Ill.Rev.Stat. Sec. 50(3) (1969)
violates both the due process and the equal protection clauses of
the 14th Amendment. The gravamen of plaintiffs' argument is that
the procedure encompassed by the Illinois garnishment procedure
permits expropriation of property from a debtor without prior
notice or an opportunity to be heard on the merits of the claim
either at the time that judgment is confessed or at the time that
the garnishment summons is issued.
For reasons set forth below we hold that the Illinois
garnishment statute when invoked to satisfy a judgment obtained
by confession pursuant to Ch. 110, Ill.Rev.Stat. § 50(3) violates
the due process clause of the 14th Amendment because of the
failure of the statute to provide a means of determining whether
or not the debtor has "knowingly and voluntarily" waived his
right to notice and hearing at the time that the garnishment
summons issued. Accordingly, we do not reach the issues raised by
defendants' equal protection argument.
A cursory sketch of the theory which supports this conclusion
is as follows. The statutory plan here involves the State of
Illinois in a procedure which results in the deprivation of a
debtor's property. The procedural safeguards of the due process
clause are thereby invoked. A fundamental principle of procedural
due process mandates notice and hearing before a person may be
deprived of property. The right to notice and hearing may be
waived. However, where as here the rights in question flow from
a constitutional base there arises a presumption against waiver
which must be overcome before such waiver is valid. Failure of
the statutory scheme to provide a means of judicially determining
whether or not the
debtor has executed a "voluntary and understanding" waiver
violates the due process clause.
It needs no extended discussion to establish that in the
instant case the debtor is deprived of the use of his property.
The fact that the judgment may be reopened and the property
returned to the plaintiffs does not mitigate against the fact
that the plaintiffs here are precluded from the use of their
property for some length of time. Sniadach v. Family Finance
Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969);
Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287
(1970); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28
L.Ed.2d 113 (1971); Osmond v. Spence, 327 F. Supp. 1349, 1356
(D.C. 1971). Having established that a deprivation of property is
implemented by the state statute, it becomes clear that the
protection afforded by the due process clause attaches to the
A rudimentary principle of procedural due process requires that
before a person may be deprived of his property he must first be
notified of the proceeding instituted against him and further be
provided with an opportunity to be heard on his own behalf.
Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28
L.Ed.2d 113 (1971); Sniadach v. Family Finance Corp.,
395 U.S. 337, 339-340, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Armstrong v.
Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965);
Coe v. Armour Fertilizer Works, 237 U.S. 413, 422-426, 35 S.Ct.
625, 59 L.Ed. 1027 (1915).
A succinct statement of this principle is found in the case of
Mullane v. Central Hanover Bank & Trust Company, where Mr.
Justice Jackson, speaking for the Court, stated:
"Many controversies have raged about the cryptic and
abstract words of the Due Process Clause but there
can be no doubt that at a minimum they require that
deprivation of life, liberty or property by
adjudication be preceded by notice and opportunity
for hearing appropriate to the nature ...