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
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
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
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
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
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.
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.
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, ...