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July 31, 1991


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


Before the Court are cross-motions for summary judgment. For the reasons set forth below, the Court grants Counterplaintiff's Motion for Summary Judgment (# 22) and denies the Counterdefendant's Motion for Summary Judgment (# 24).


Counterplaintiff Raymond D. Johnson ("Johnson") was the defendant in a small claims action in the Thirteenth Judicial Circuit in Bureau County, Illinois. In that action, a default judgment was entered against Johnson and in favor of the plaintiff, 10/33 Volunteer Ambulance Service. 10/33 Volunteer Ambulance Service proceeded to enforce its judgment by using the Illinois Non-Wage Garnishment Statute, Ill.Rev.Stat. ch. 110, ¶ 12-701 et seq., in post-judgment proceedings. On December 14, 1989, 10/33 Volunteer Ambulance Service filed an affidavit and interrogatories as required by that statute. The Clerk of the Circuit Court of Bureau County and the Plaintiff/Counterdefendant in this action, Wayne E. Jacobson ("the Clerk"), then issued a garnishment summons upon Spring Valley City Bank (garnishee) where Johnson had a bank account. On January 10, 1990, the Bank was served with the garnishment summons, and it then froze Johnson's accounts totaling $110.14. It is undisputed that the garnished bank account consisted of money derived from Johnson's Social Security disability benefits, which are exempt from garnishment under state and federal law. Ill.Rev.Stat. ch. 110, ¶ 12-704; 15 U.S.C. § 1673 (1991).

Pursuant to the state court order, these funds were turned over to 10/33 Volunteer Ambulance Service as partial satisfaction of the underlying judgment. Johnson was not notified of the pending garnishment proceedings, of his exemption rights, or of the means by which to assert his exemption rights. As a matter of practice or policy, the Clerk does not require notice to the judgment debtor in conjunction with the issuance of a non-wage garnishment summons.

Johnson's attorney then contacted the Clerk and expressed his opinion that the garnishment procedure being used in Bureau County was unconstitutional for failure to provide the judgment debtor with notice of the garnishment and of his exemption rights. Johnson's counsel advised the Clerk that, unless the due process deficiencies were corrected, Johnson would be filing a class action lawsuit for redress.

The Clerk responded by filing a complaint in the Circuit Court of Bureau County, seeking a declaration that the Illinois garnishment statute was constitutional. Johnson removed the action to this Court, and filed a counterclaim. Johnson sought a declaration that the statute is unconstitutional, both on its face and as applied, and further requested an order enjoining the Clerk from issuing garnishment summonses without providing the judgment debtor with notice of the garnishment and exemption rights. This Court certified a counter-plaintiff class of all judgment debtors subject to garnishment following the issuance of a summons by the Clerk. The pending cross-motions for summary judgment followed.


The issue before this Court is whether the Illinois non-wage garnishment statute is unconstitutional, both on its face and as applied by the Clerk. Johnson asserts that the statute deprives him of his Fourteenth Amendment right to procedural due process. The Clerk asserts that the garnishment statute, and Bureau County's implementation of that statute, adequately safeguards Johnson's due process rights. A due process violation exists when there is a property interest and a deprivation of that property interest without the procedural protections mandated by the Fourteenth Amendment. Thus, the initial question is whether the Illinois non-wage garnishment process deprives Johnson of a property interest?

A. Is this Non-Wage Garnishment a Taking of Property?

Johnson argues that when a non-wage garnishment summons is served the judgment debtor is deprived of his property interest. Johnson states that the garnishee deprived him of access to his bank account when the Bank held his property while the court decided if the judgment creditor is entitled to this property. Johnson argues that when the garnishment summons was issued by the Clerk, the funds in his bank account were frozen, and he had no access to his personal funds, even to purchase the basic necessities of life.

The Clerk contends that there has been no taking of property from Johnson, but merely a non-possessory lien in favor of the Clerk that only extends to non-exempt property. The Clerk notes that the summons issued requests only that a representative of the garnishee appear before the Court and answer the interrogatories concerning the property interest of the judgment debtor. Ill.Rev.Stat. ch. 110, ¶ 12-701. The Clerk argues that the summons does not seize property, but merely requires the garnishee to appear before the court.

The Illinois garnishment procedures required the garnishee to hold the property of the judgment debtor, outside of his reach, until there is a determination by the court on whether the judgment creditor is entitled to the property. Ill.Rev.Stat. ch. 110, ΒΆ 12-707. During this period, the Court finds the judgment debtor does not have access to the property in question. Even if the Clerk is not in actual possession of the judgment debtor's property, the mechanism employed by the Clerk effectively deprives Johnson of the use of his property and is therefore a taking. Accordingly, ...

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