The opinion of the court was delivered by: Marshall, District Judge.
In this suit brought pursuant to 42 U.S.C. § 1983, plaintiffs
challenge the constitutionality of Ill.Rev.Stat., ch. 62, § 82,
which deals with garnishment of wages following a judgment by
confession. Plaintiffs compose a class of all wage earners
whose wages are subject to garnishment in satisfaction of
judgments entered pursuant to cognovit clauses. Plaintiffs seek
declaratory relief pursuant to 28 U.S.C. § 2201 and 2202 and
invoke our jurisdiction pursuant to 28 U.S.C. § 1343(3) and
(4). Plaintiffs contend that the notice provided to a debtor
whose wages are garnished pursuant to § 82 is insufficient
under the due process and equal protection clauses of the
Fourteenth Amendment. Cross motions for summary judgment are
The statute at issue here provides the means for a creditor
to obtain garnishment on a judgment by confession:
A judgment by confession without service of
process on the defendant shall not be the basis
for seeking a deduction order, unless such
judgment is confirmed after service of process by
a trial de novo, as if such confession of
judgment had not been obtained, except that if it
appears by the return of the officer on the first
summons that the employee is not found, alias
summonses subsequently issued may be served upon
the employee by leaving a copy thereof with the
employee's employer, or leaving a copy thereof at
the usual place of business of the employer with
his or its superintendent, manager, cashier,
general agent or clerk, pursuant to an affidavit
filed by the creditor with the clerk of the court
stating the identity of the employee's employer,
and that the employee is actively employed at the
time such alias is sought. . . .
Thus a creditor holding a judgment obtained by virtue of a
cognovit clause, which waives all right to notice and hearing,
is permitted to garnish the judgment debtor's wages only if
the creditor confirms the judgment. Confirmation requires a
trial de novo after service of process. If the debtor is not
found in the first attempt at service, alias summons left with
the debtor's employer may be substituted for personal service.
The statute does not require the employer to notify the
debtor-employee of the summons, nor does it require that a
copy of the complaint underlying the confessed judgment be
served with the summons. Plaintiffs challenge the
constitutionality of the alias summons portion of the
The facts surrounding the garnishment of one class member's
wages illustrate the evils plaintiffs see in the statute.
Plaintiff Juvenal Torres purchased a combination
television-radio set from P-M Carpeting Company. The sales
contract, which included a confession of judgment provision,
called for payments totalling $162.54. P-M Carpeting
subsequently sold the contract to Dearborn Acceptance
Corporation. According to Torres, he was not informed of this
transaction and continued to make his payments to P-M
Carpeting Company. He alleges that he had paid the account in
full by April 23, 1977. On March 1, 1977, however, Dearborn
Acceptance Corporation filed suit against Torres for
non-payment of the sum due under the sales contract. Judgment
was confessed against him on March 4, 1977. Subsequent to this
confession of judgment, and in accordance with Ill.Rev.Stat.,
ch. 62, § 82, the creditor, Dearborn Acceptance Corporation,
made one attempt to personally serve Torres with notice of the
pending trial de novo. When this summons was returned "not
found," Dearborn proceeded with service of an alias summons on
Revere Aluminum Building Products Corporation, Torres'
employer. Revere did not give Torres notice of the confession
of judgment entered against him or of the confirmation
proceeding. When Torres failed to appear for the confirmation
hearing on May 9, 1977, the confessed judgment was confirmed ex
parte. Torres was not aware of any of the proceedings regarding
the contract held by Dearborn until his wages were garnished.
Plaintiffs contend that the alias summons statute violates
both the due process and equal protection clauses of the
Fourteenth Amendment. Plaintiffs' due process argument is
predicated on the rights of parties to notice and hearing
before they may be deprived of property. According to
plaintiffs, their right to notice is not affected by the
confession of judgment clause in the sales contracts. Even if
a defendant is not entitled to postjudgment notice prior to
garnishment, plaintiffs contend that the process by which a
cognovit debtor's wages are garnished in Illinois is a
prejudgment garnishment. Section 71 of Ill.Rev.Stat., ch. 62,
the garnishment chapter, excludes from the definition of a
judgment creditor any recipient of a confessed judgment which
has not been confirmed as required by § 82. Therefore,
plaintiffs argue that cognovit debtors are not judgment debtors
and are thus entitled to notice prior to garnishment. See
Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820,
23 L.Ed.2d 349 (1969).
Plaintiffs contend that for two reasons the notice provided
by § 82 is not reasonably calculated to apprise debtors of the
claims against them and thus is insufficient under the due
process clause. First, because the statute allows service on an
employer, who is not required to notify the debtor-employee,
and allegedly usually does not so inform the employee, the
statute does not insure that notice will reach the debtor.
Second, even if the debtor receives the summons, the notice is
inadequate because, unlike the rules applicable in other civil
cases,*fn2 § 82 authorizes service on the employer of the
summons without a copy of the complaint attached. Plaintiffs
illustrate the importance of this omission by noting that
plaintiff Torres, even if he had received the summons, would
have been unable to understand the claim against him without a
copy of the complaint indicating the basis of the underlying
As for the alleged equal protection violation, plaintiffs
argue that § 82 allows service on a cognovit debtor's employer,
but that under Illinois law all other debtors are entitled to
personal service. Accordingly, plaintiffs allege that § 82
discriminates against cognovit debtors with no rational basis
for doing so. Although plaintiffs' equal protection contention
appears to have substance, we need not and do not reach it
because we find plaintiffs' due process contention compelling,
and we grant plaintiffs the relief they seek on that theory.
Defendants respond to plaintiffs' due process arguments by
arguing that a cognovit debtor is not entitled to notice prior
to the confirmation proceeding. Although the state has
provided in § 82 a mechanism for allowing debtors to challenge
the basis of a cognovit judgment in a trial de novo, the
defendants argue that the state is not constitutionally
required to do so and is therefore not required to provide
notice. Contending that the validity of confessed judgments was
established by D.H. Overmyer Co., Inc. of Ohio v. Frick Co.,
405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972), defendants
argue that plaintiffs are entitled only to the safeguards
provided for other judgment debtors whose wages or assets are
garnished. Defendants assert that such safeguards are provided
by the statute here. As for plaintiffs' equal protection
argument, defendants argue that plaintiffs, as cognovit debtors
whose wages are garnished, receive at least a modicum of notice
and may appear at the confirmation hearing, safeguards not
available to other cognovit debtors whose wages are not
garnished. Therefore plaintiffs are not deprived of benefits
awarded to other members of a similarly situated class.
The central issue in this case is the form of notice, if
any, required before wages may be garnished in satisfaction of
a confessed judgment. Both plaintiffs and defendants have
sought a simple route by which to answer this question.
Plaintiffs contend that a judgment obtained through a cognovit
clause is not a judgment for purposes of the garnishment
statute until confirmed. Therefore the Illinois statute
permits prejudgment garnishment, which must be preceded by
notice and hearing as required by Sniadach v. Family Finance
Corp., supra. This complete reliance on Sniadach is misplaced.
Plaintiffs' wages are not garnished until the confessed
judgment is confirmed, either after a trial de novo or ex parte
if the debtor fails to appear. Thus no wages are garnished
before the cognovit judgment is a valid judgment for purposes
of the garnishment statute. Unless the validity of cognovit
judgments in this situation may be questioned, no prejudgment
garnishment takes place.
Defendants, however, also oversimplify the issues by
assuming the validity of cognovit judgments in all contexts.
According to defendants, the constitutional validity of
cognovit clauses remains unshaken by Overmyer, supra, and
therefore plaintiffs are entitled only to those rights afforded
to postjudgment debtors. Defendants ignore the possibility that
the validity of cognovit judgments may depend on the
circumstances of the case and the statutory scheme implemented
to satisfy the judgment.
The constitutional challenge here is a narrow one.
Plaintiffs contest only the use, without adequate notice, of
the wage garnishment statute to satisfy judgments obtained
through cognovit clauses. The plaintiffs therefore are not
mounting a broad constitutional attack on all confession of
judgment clauses. But the validity of such judgments is
crucial to a resolution of the case. If the cognovit judgment
and the concomitant waiver of the constitutional right to all
notice and hearing are valid, regardless of how the judgment
is satisfied, then the state is not required by the
Constitution to provide cognovit debtors with a confirmation
hearing. The state would not then violate plaintiffs'
constitutional rights by failing to notify plaintiffs of the
confirmation proceedings, just as it would not violate their
rights by failing to notify them of the judgment by
confession. Therefore, we must first determine the validity of
a debtor's waiver, through a cognovit clause, of the
constitutional right to notice and hearing. We must then
consider the related question of whether the state must afford
the cognovit debtor with an opportunity to challenge the
validity of the waiver. Only then can we reach plaintiffs'
claim by determining whether the invocation of the wage
garnishment statute to satisfy confessed judgments affects the
validity of the waiver of notice and hearing.*fn3
The Fourteenth Amendment protects against the deprivation of
property without due process. Due process requires a hearing.
Instrumental to such a hearing is notice reasonably calculated
to apprise the interested party of the action. Mullane v.
Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.
865 (1950). The right to notice, however, may be waived.
National Equipment Rental Limited v. Szukhent, 375 U.S. 311, 84
S.Ct. 411, 11 L.Ed.2d 354 (1964). A party executing a cognovit
clause contractually waives the right to notice and
hearing.*fn4 In D.H. Overmyer Co., Inc. of Ohio v. Frick Co.,
supra, the Supreme Court rejected a claim that judgments
entered on the basis of cognovit clauses are per se
unconstitutional. The Court applied the standard for
determining the validity of waiver in criminal cases, the
"intentional relinquishment of a known right or privilege,"
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461
(1938),*fn5 but determined that the standard was satisfied.
The Court based this conclusion on the fact that both parties
to the contract were corporations which had equal bargaining
power and which had bargained over the inclusion of the
cognovit. The Court cautioned, however, that "other legal
consequences may ensue" if the contract is an adhesion contract
in which the parties are of unequal ...