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12/13/94 E.J. MCKERNAN COMPANY v. JOSEPH J. GREGORY

December 13, 1994

E.J. MCKERNAN COMPANY, PLAINTIFF-APPELLEE,
v.
JOSEPH J. GREGORY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 81-CH-431. Honorable Robert R. Thomas, Judge, Presiding.

The Honorable Justice McLAREN delivered the opinion of the court: Inglis, P.j., and Colwell, J., concur.

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Joseph J. Gregory, brings a consolidated appeal from two orders of the circuit court of Du Page County denying his motion to quash the garnishment of a mutual fund and his motion to quash and restrain the sale of his home in Glen Ellyn, Illinois. We reverse the mutual fund order and remand the cause, and we reverse the order authorizing the sale of the home.

NONWAGE GARNISHMENT

A judgment was entered on February 4, 1992, against the defendant and in favor of the plaintiff, E.J. McKernan Company, in the amount of $306,000. On June 26, 1992, the plaintiff filed an affidavit for nonwage garnishment on the Prudential Life Insurance Companyof America. On August 19, 1992, Gregory filed a motion to quash the garnishment. On March 16, 1993, the circuit court issued an order denying the defendant's motion to quash and determining that the plaintiff was entitled to half of the mutual fund account held by Prudential for the defendant and his wife.

On appeal, the defendant claims that the garnishment of his mutual fund account with Prudential is void because Illinois' nonwage garnishment law (735 ILCS 5/12-701 et seq. (West 1992)) violates the procedural due process guarantees of the Illinois and United States Constitutions. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, ยง 2.) The defendant further argues that the garnishment was improper because the monies in his mutual fund account, entirely the proceeds of life insurance contracts, were exempt from garnishment. 735 ILCS 5/12-1001(f) (West 1992).

We note initially that the nonwage garnishment law was amended by the Illinois General Assembly in 1992 to provide debtors with notice of garnishments and an opportunity to assert exemptions. (Pub. Act 87-1252, eff. Jan. 7, 1993 (amending 735 ILCS 5/12-701, 12-705, 12-707, 12-710, 12-711, 12-716 (West Supp. 1993)).) These amendments appear to address the constitutional infirmities suggested by the defendant. However, we are presented only with the question of whether the law in effect prior to January 7, 1993, the effective date of the amendments, passes constitutional muster. We agree with the defendant that it does not. Therefore, we reverse the garnishment order and remand for further proceedings consistent with this opinion.

The nonwage garnishment law in effect in 1992 provided in relevant part:

"Upon the filing by a judgment creditor or other person of an affidavit that the affiant believes any person is indebted to the judgment debtor, other than for wages, or has in his or her possession, custody or control any other property belonging to the judgment debtor *** the clerk of the court in which the judgment was entered shall issue summons against the person named in the affidavit commanding him or her to appear in the court as garnishee." (Emphasis added.) 735 ILCS 5/12-701 (West 1992).

The defendant claims that he had a valid exemption to claim which would have precluded the attachment of his mutual fund and that the garnishment notice issued pursuant to section 12-701 against his mutual fund effectively froze those assets without first providing him an opportunity to assert his exemption. We believe it is clear from a plain reading of the 1992 version of the nonwagegarnishment law that the defendant's claim of constitutional infirmity is correct.

We note that the 1992 version of the nonwage garnishment law was declared unconstitutional in a Federal district court case, Jacobson v. Johnson (C.D. Ill. 1991), 798 F. Supp. 500. Although not binding here, we agree with that decision that the nonwage garnishment law in effect in 1992 violated the dictates of Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed 2d 18, 96 S. Ct. 893. In Mathews, the United States Supreme Court determined:

"Identification of the specific dictates of due process generally requires consideration of three distinct 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." Mathews, 424 U.S. at 335, 47 L. Ed 2d at 33, 96 S. Ct. at 903.

When we undertake this balance, we believe it is clear that there is a minimal burden on Government or creditors in requiring that a debtor be given notice and an opportunity to be heard prior to issuing a garnishment summons. However, there is a great danger that a debtor may erroneously be deprived of his or her property. Therefore, the 1992 version of the nonwage garnishment violated the defendant's due process rights.

The defendant further claims that the circuit court erred in determining that the plaintiff was entitled to half of his Prudential mutual fund because that account was "funded entirely by accumulated cash values in two life insurance policies" and, as such, was exempt from attachment under section 12-1001(f) of the Code of Civil Procedure (Code). 735 ILCS 5/12-1001(f) (West 1992).

The plaintiff argues that the defendant has waived this argument for purposes of appeal because the defendant failed to support his claim by citation to relevant authority as required by Supreme Court Rule 341(e)(7). (134 Ill. 2d R. 341(e)(7); see In re Marriage of Sutherland (1993), 251 Ill. App. 3d 411, 413, 190 Ill. Dec. 695, 622 N.E.2d 105.) The plaintiff points out that he supported his claim of exemption by citing to section 12-1001(f) of ...


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