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 (#
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
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.
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, ¶ 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, ...