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September 13, 1989


The opinion of the court was delivered by: Baker, Chief Judge.


This matter is before the court on the plaintiff's motion for summary judgment. For the reasons discussed below, the motion is allowed.


The plaintiff, Dixie Kirby, brought this class action*fn1 pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief on the grounds that the procedure providing for garnishment in the Illinois statute governing wage deductions, Ill.Rev.Stat. ch. 110, §§ 12-801 to 12-819 (1987),*fn2 violates the Due Process Clause of the Fourteenth Amendment both on its face and as applied by the defendant Edgar County.*fn3 Specifically, the plaintiff argues that the current procedure violates due process because judgment debtors whose wages are garnished do not receive notice of the garnishment proceeding, of their exemption rights under Illinois and federal law, or of the means to exercise those rights.

The relevant facts are as follows.*fn4

A. Wage Garnishment Procedure

Creditors seeking to enforce judgments in Illinois may initiate wage garnishment if the debtor is employed. The Illinois statute governing such garnishment is generally set forth in Ill.Rev.Stat. ch. 110, §§ 12-801 through 12-819 (1987). The procedure prescribed by statute requires the creditor to file an affidavit and written interrogatories regarding the debt. The clerk of the court then issues a summons which commands the employer to answer the interrogatories in writing and under oath. Ill. Rev.Stat. ch. 110, § 12-805 (1987).

The interrogatories request the employer to specify the amount of wages due the debtor for the eight week period immediately following service of the summons. Ill.Rev.Stat. ch. 110, § 12-808(c) (1987). The summons must be accompanied by a copy of the underlying judgment and a copy of Title III of the Federal Consumer Credit Protection Act (15 U.S.C. § 1671-1677). Ill.Rev.Stat. ch. 110, § 12-805 (1987). The statute does not require that a copy of the more favorable Illinois statutory restrictions on garnishment be provided to the employer.

Federal law restricts wage garnishment to the lesser of: (a) 25 percent of disposable earnings for a week, or (b) the amount by which an individual's weekly earnings, after deducting amounts required by law to be withheld, exceed thirty times the Federal Minimum Hourly Wage (currently $100.50 per week). 15 U.S.C. § 1673(a) (1982).

The wage deduction exemption under the Illinois statute is more generous than that specified by federal law. Wage deductions are limited to the lesser of (a) 15 percent of gross earnings per week, or (b) the amount by which disposable earnings*fn5 for a week exceed forty times the Federal Minimum Hourly Wage (currently $134 per week). Ill.Rev.Stat. ch. 110, § 12-803 (1987). In addition, certain pension and retirement benefits are exempt from garnishment. Ill.Rev.Stat. ch. 110, § 12-804 (1987).

The Illinois statutory scheme does not require that judgment debtors be notified of the pendency of the garnishment proceedings or of exemptions under Illinois and federal law. Nor does the statute require notice of and an opportunity for a prompt hearing enabling the debtor to assert any exemption rights. Furthermore, the wage garnishment procedure as implemented in Edgar County does not provide any notice to debtors of their exemption rights, of the means to assert those rights, or even of the pendency of the procedure.

The Defendant Clerk issues all garnishment summonses for Edgar County. The summons and interrogatories are served on the employer, not on the debtor. Creditors routinely use form wage deduction summonses, affidavits, and interrogatories. The Edgar County Clerk's office makes such standardized forms available. The form summonses and interrogatories are often confusing, sometimes outdated,*fn6 and fail to elicit enough information to determine whether a debtor's exemption rights are being observed or ignored.*fn7 Consequently, it is often impossible to determine from the returned interrogatories whether the amount actually withheld is the correct amount under state and federal law.[fn7A]

Sometime after the interrogatories are returned, the creditor presents a prepared turnover order to a judge that requires the employer to release the funds to the creditor. The debtor never sees this ex parte order.

B. The Named Plaintiff's Situation

The plaintiff Kirby had a judgment entered against her by the Medical Center of Paris in April 1987. Approximately two months later, she was called into her employer's office at Central States Packaging in Danville. There her boss indicated that she had been served a wage garnishment summons and, as a result, would have to withhold fifteen percent of Kirby's weekly gross income beginning with her next paycheck. That was the first time Kirby heard about the pending wage garnishment action.

Kirby received no notice from the creditor of the pending wage garnishment action. She also received no written notice of the legal limitations of the garnishment procedure. She knew nothing of such restrictions until she contacted Legal Aid near the end of the eight week garnishment period.

At the time, Kirby was earning $4.25 an hour but her working hours were erratic. Although she was hired to work thirty-six hours a week, the actual number of hours varied from week to week. She occasionally worked more than thirty-six hours but generally worked less than that. (Deposition of Dixie Kirby at p. 12; Affidavit of Dixie Kirby at Pars. 11 and 15.)

Kirby's employer misunderstood the garnishment limitations. The employer believed that she was required to withhold fifteen percent of Kirby's gross earnings. That is what she told Ms. Kirby. (Deposition of Dixie Kirby at pp. 12-15.) In fact, the information on the form specified that the employer was required to withhold the lesser of (1) fifteen percent of Kirby's gross earnings or (2) the amount by which Ms. Kirby's "disposable income" exceeded thirty times the minimum wage. Because Ms. Kirby received no notice of her exemption rights or even a copy of the interrogatories that were served on and answered by her employer, she assumed that her employer was withholding the correct amount. She had no reason to suspect this was erroneous until she learned of the existence of Legal Aid and contacted the Champaign Land of Lincoln Legal Assistance office.

The employer sent a check for $146.85 to the Clerk's office when she returned the interrogatories ($154.85 actually withheld, less an $8 fee). The amount by which actual withholdings exceeded legal withholdings was $45.75. (Affidavit of Dixie Kirby at Par. 15.) This amount was never refunded to Kirby.

The same employer, in response to a new wage garnishment summons, began garnishing Ms. Kirby's wages again on December 31, 1987. The employer again withheld fifteen percent of Kirby's gross wages even though her disposable income never exceeded forty times the minimum wage for any week (the alternative figure under Ill.Rev.Stat. ch. 110, § 12-803 (1987) since August 21, 1987). Eventually, the employer returned all the withheld money under the second summons to Ms. Kirby, but Kirby was deprived of the use of $163.39 worth of exempt income for weeks.

Although the parties agree there are no genuine issues of material fact (Plaintiff's Brief in Support of Motion for Summary Judgment, Docket # 21 at 7; Defendants' Response, Docket # 25 at 1), the parties disagree as to the analysis the court should use in disposing of this matter. The defendant relies on Endicott Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924) and Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946), for the proposition that the Fourteenth Amendment does not require that a judgment debtor be given notice of and an opportunity to defend against a wage deduction proceeding to collect a debt that has already been reduced to a judgment. The rationale of Endicott is that the post-judgment debtor has already had notice and an opportunity to defend before the debt was reduced to a judgment. The defendant contends that the Court reaffirmed Endicott in Griffin v. Griffin, 327 U.S. 220, 228, 66 S.Ct. 556, 560, 90 L.Ed. 635 (1946), an interpretation questioned by the plaintiff and several courts. The plaintiff, instead, argues that Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and not Endicott is controlling, and that the application of the Mathews analysis to the Illinois wage garnishment procedure requires the conclusion that the statute violates due process.


A. Applicable Law

For a due process violation to exist, there must be a property interest and a deprivation of the property interest without the procedural protection that the Fourteenth Amendment mandates. (U.S. Const. Amend. XIV § 1.) A person has a property interest in his or her wages. Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969) (wages are a special type of property); Wagner v. Duffy, 700 F. Supp. 935, 942 (N.D.Ill.1988). Whether the Illinois wage garnishment procedure deprives the plaintiff of a property interest without procedural due process, however, warrants more discussion.

As mentioned above, the parties disagree over whether Endicott or Mathews is controlling. In Endicott, the Supreme Court upheld the constitutionality of the New York wage garnishment procedure against a challenge that the procedure violated due process by authorizing the issuance of a garnishment execution without notice to the judgment debtor and without affording him a hearing. Endicott, 266 U.S. at 287-89, 45 S.Ct. at 62-63. The Supreme Court reasoned that:

  [T]he established rules of our system of
  jurisprudence do not require that a defendant who
  has been granted an opportunity to be heard and
  has had his day in court, should, after a
  judgment has been rendered against him, have a
  further notice and hearing before supplemental
  proceedings are taken to reach his property in
  satisfaction of the judgment. Thus, in the
  absence of a statutory requirement, it is not
  essential that he be given notice before the
  issuance of an execution against his tangible
  property; after the rendition of the judgment, he
  must take "notice of what will follow," no
  further notice being "necessary to advance
  justice." (Citations omitted.)

Id. at 288, 45 S.Ct. at 62-63.

While the defendant argues that Endicott requires that the court uphold the constitutionality of the Illinois wage garnishment procedure, the plaintiff urges the court to adopt the more recent analysis set forth in Mathews under which, the plaintiff argues, the Illinois wage garnishment procedure violates due process.

In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court articulated the test to be used in deciding whether a procedure comports with due process:

  [I]dentification of the specific dictates of due
  process generally requires consideration of three
  factors: First, the private interest that will be
  affected by the official action; second, the risk
  of an erroneous deprivation of such interest
  through the procedures used, and the probable
  value, if any, of additional or substitute
  procedural safeguards; and finally, the
  Government's interest, including the function
  involved and the fiscal and administrative
  burdens that the additional or substitute
  procedural requirement would entail.

424 U.S. at 335, 96 S.Ct. at 903.

The Supreme Court has not expressly overruled Endicott. The Court decided Griffin v. Griffin, see supra p. 518 without mentioning Endicott. There is debate as to the effect of Griffin on Endicott. See cases cited in McCahey v. L.P. Investors, 774 F.2d 543, 548 n. 6 (2d Cir.1985); see also Follette v. Vitanza, 658 F. Supp. 492, 510-11 (N.D.N.Y.1987).

Other courts have questioned Endicott's continued vitality, in light of more recent due process decisions, see Dionne v. Bouley, 757 F.2d 1344, 1351 (1st Cir.1985); Finberg v. Sullivan, 634 F.2d 50, 56-58 (3d Cir.1980) (en banc); Brown v. Liberty Loan Corp., 539 F.2d 1355, 1363-69 (5th Cir.1976); Harris v. Bailey, 574 F. Supp. 966, 969 (W.D.Va.1983); Deary v. Guardian Loan Co., Inc., 534 F. Supp. 1178, 1185-86 (S.D.N.Y.1982). In recent years, numerous plaintiffs have challenged the constitutionality of post-judgment remedies under the due process clause. See cases cited in McCahey v. L.P. Investors, 774 F.2d 543, 547 n. 5 (2d Cir.1985).

The majority of courts that have considered the constitutionality of wage garnishment procedures have adopted the balancing test articulated in Mathews. See Dionne v. Bouley, 757 F.2d at 1351-52 (application of Mathews to Rhode Island post-judgment garnishment procedure); McCahey, 774 F.2d at 549 (application of Mathews to New York's post-judgment remedy); Finberg, 634 F.2d at 58 (application of Mathews to Pennsylvania statutory procedure for post-judgment garnishment of bank accounts); Follette, 658 F. Supp. at 511 (application of Mathews to New York post-judgment wage garnishment scheme); Neeley v. Century Finance Co., 606 F. Supp. 1453, 1462 (D.Ariz.1985) (application of Mathews to Arizona statutory procedure for post-judgment garnishment of bank accounts). But see Haines v. General Motors Corp., 603 F. Supp. 471, 476 n. 3 (S.D.Ohio 1983) ("Although other courts outside the Sixth Circuit have found the Supreme Court case of Endicott undermined by contemporary authority on procedural due process, the court is bound to follow such controlling case law when it has not been overruled") (Citations omitted).

A common rationale given by courts for not following Endicott is that Endicott did not consider the possibility that garnishment might deprive the judgment debtor of property exempt from attachment under State law if the debtor does not receive notice and an opportunity to be heard. See, e.g., McCahey, 774 F.2d 547-48; Finberg v. Sullivan, 634 F.2d at 56-57; Follette v. Vitanza, 658 F. Supp. at 511; Deary, 534 F. Supp. at 1185. The defendant, however, points out that the law in Endicott did involve exempt property: the first twelve dollars of the plaintiff's weekly wages were exempt from garnishment and deductions above that amount were restricted to ten percent of the debt. The plaintiff in Endicott thus faced the possibility that the employer could miscalculate and withhold a greater amount than that allowed by the statute. (Defendant's Response to Motion for Summary Judgment, Docket # 25 at 7.)

Although the defendant makes an arguable point about Endicott, I find that the Supreme Court's more recent due process pronouncement in Mathews has eroded the Endicott decision. Additionally, the Seventh Circuit, in a substantially similar context, indicated that it would follow the majority of courts that adopt the Mathews balancing approach. Toney v. Burris, 829 F.2d 622 (7th Cir.1987). Toney involved a challenge to regulations that allowed the state to offset wages of state employees to pay off the employees' past due loan obligations. The district court adopted the Mathews balancing test to determine what process the plaintiff was entitled to and held the statutory offset provision unconstitutional. The Seventh Circuit had no quarrel with the district court's application of Mathews to the statutory offset provision but remanded the case to the district court because it had failed to take into consideration amendments to the statutory provision. Toney, ...

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