On September 8, 2015, a federal district court invalidated a portion of the Georgia post-judgment garnishment statute in Strickland v. Alexander, No. 1:12-CV-02735-MHS (N.D. Ga.). Senior Judge Marvin Shoob found that the statute was constitutionally deficient on due process grounds, insofar as it fails to require:
- Notice to judgment debtors that there are certain exemptions under state and federal law which the debtor may be entitled to claim with respect to the garnished property;
- Notice to judgment debtors of the procedure to claim an exemption; and
- A timely procedure for adjudicating exemption claims.
The court also enjoined the Gwinnett County Clerk from issuing any summons of garnishment pursuant to existing forms and procedures that are inconsistent with the court’s ruling.
On October 5, the court granted a motion to amend its order, clarifying that its ruling and injunction were limited to garnishment orders against financial institutions possessing a judgment debtor’s account or other property and did not apply to continuing wage garnishments filed against a judgment debtor’s employer. In granting the motion to amend, the court found continuing wage garnishments presented distinct issues that the plaintiff did not have standing to raise.
Response from Atlanta Area Courts
There has been considerable confusion about the court’s original order, some of which continues even after the amended order. Several counties ceased issuing garnishment orders of any kind even though the injunction, by its terms, only applied directly to Gwinnett County.
- On September 9, the Gwinnett County Clerk stopped issuing summons or disbursements in all pending garnishment cases.
- On September 14, the Chief Magistrate Judge in Fulton County instructed the Clerk to stay and withhold all issuances of summons or notices in garnishment cases.
- On September 22, Cobb County, which initially modified its procedure through a standing order, cancelled all scheduled garnishment cases and ceased issuing summons for garnishment cases filed after September 8.
- On the other hand, on September 21, DeKalb County modified its garnishment case procedure by standing order (the DeKalb Order) to address the deficiencies by clarifying that a debtor may file an exemption claim immediately and will receive an expedited hearing within four days.
Further Proceedings in District Court
Two key issues remain before the court, raised in a separate motion filed by Georgia Attorney General Samuel Olens. The Attorney General has requested, first, that the court clarify that its ruling does not address garnishments against commercial debtors; and, second, that the court revisit its finding that the statute embeds a constitutionally untimely process.
The Attorney General argues that the statute as applied to commercial debtors does not raise the same due process concerns the court identified because the exemptions do not apply to commercial debtors and that the individual debtor-plaintiff lacks standing to challenge commercial debtor garnishments. In his response, the plaintiff did not oppose this aspect of the Attorney General’s motion.
The Attorney General’s second request addresses the claim of a constitutional deficiency that the court found embedded in the procedure required by statute. Judge Shoob found that the procedure set forth in O.C.G.A. § 18-4-95, as explained by the Georgia Court of Appeals in Terrell v. Fuller, 160 Ga. App. 56, 286 S.E.2d 50 (1981), requires a debtor to wait between 30 and 45 days to file an exemption claim, a period during which the debtor cannot access the funds at issue, even where such funds are exempt. Judge Shoob found this process violated due process, citing federal case law in other jurisdictions finding a 15-day delay to be too long. See, e.g.,Finberg v. Sullivan, 634 F.2d 50, 59 (3d Cir. 1980).
However, the Attorney General argues in his motion (as the DeKalb Order provides) that, under more recent case law from the Georgia Court of Appeals, a debtor may make an exemption claim without relying on the procedure targeted by Judge Shoob. The Attorney General argues that Georgia law currently requires an exemption claim hearing within 10 days. The Attorney General is asking Judge Shoob to reconsider his holding regarding the timeliness of the state’s process in light of this case law that was not previously brought to the court’s attention.
If Judge Shoob denies the Attorney General’s motion and finds that the statutory process to obtain a hearing on an exemption claim is too lengthy, an amendment of the statute would likely be necessary before this type of garnishment case can resume.
As things stand now, the required response for a recipient of a garnishment summons and the required action on the part of state courts or the legislature will depend on how the district court rules on the Attorney General’s pending motion, and the type of garnishment at issue.
- With respect to continuing wage garnishments against a debtor’s employer, there are no immediate issues in light of the district court’s amended order, although Gwinnett, Fulton, and Cobb counties will need to amend their current standing orders to resume continuing wage garnishment cases.
- With respect to commercial debtor garnishments, their continued viability may depend on whether Judge Shoob exempts them from the order (as he did with continuing wage garnishments) and, if not, whether he denies the Attorney General’s motion and declares that the unconstitutional process is required by the statute. Based on the court’s recent amended order and the similarity between the arguments accepted in that order and the standing and exemption arguments made by the Attorney General in his motion, the argument to remove commercial garnishment from the effect of the court’s judgment seems compelling.
- Finally, with respect to garnishments of individual accounts held by a financial institution, it seems unlikely that Gwinnett, Fulton, and Cobb counties will alter their moratoriums on such garnishments, at least until the district court rules on the pending motion. If the court denies the motion and declares that the unconstitutional process is mandated by the statute, a number of counties (particularly Gwinnett) may be unwilling to resume issuing this type of garnishment unless and until the legislature amends the statute.
Given the current uncertainty surrounding post-judgment garnishments under Georgia law, anyone who received a garnishment summons (other than for a continuing wage garnishment) that calls for a response after September 8, 2015, including for a garnishee’s answer, should seek legal advice.