The opinion of the court was delivered by: OVERTON
WILLIAM R. OVERTON, U.S. District Judge
Before the court is plaintiff's motion for summary judgment.
This suit involves a challenge to the constitutionality of Arkansas' postjudgment garnishment statutes, Ark. Stat. Ann. § 31-501, et seq. (Repl. 1962). Plaintiff makes class action allegations that the class she seeks to represent is composed of all judgment debtors in the State of Arkansas who may now or in the future be exempt from garnishment or entitled to claim state and/or federal exemptions. Plaintiff also seeks to have the defendants certified as a class composed of all officials in the State of Arkansas authorized to issue writs of garnishment.
The following facts appear to be undisputed by the parties:
Plaintiff, Rosemary Davis, is a judgment debtor of defendant Michael Motor Company, Inc. (Michael Motor). Ms. Davis is a low-income person who is the sole support of herself and her children. Defendant Marjorie Paschall is the Circuit Clerk of Jefferson County, Arkansas, and has among her duties and responsibilities, issuance of postjudgment writs of garnishment.
On or about September 24, 1979, defendant Michael Motor obtained a default judgment against plaintiff in the Circuit Court of Jefferson County in the case of Michael Motor Company, Inc. v. Davis, Jefferson County Circuit Court No. 79-294-1. On May 22, 1985, pursuant to Ark. Stat. Ann. § 31-501, et seq. (Repl. 1962), and acting under color of state law, defendant Paschall issued a writ of garnishment at the request of Michael Motor which was served on Ms. Davis' employer, Holiday Inns. On the following dates Holiday Inns (garnishee in the state court action) paid into the registry of Jefferson County Circuit Court, the following wages owed to Ms. Davis: May 29, 1985 - $51.50; June 12, 1985 - $31.01; July 15, 1985 - $84.00; again on July 15, 1985 - $55.70. The payments were made without notice to or the written consent of Ms. Davis. During the time period set out above, plaintiff's disposable weekly wages were exempt under federal law as they were less than the amount permitted to be garnished pursuant to 15 U.S.C. § 1673 (1982). The writ of garnishment makes no mention of any federal or state statutory exemptions.
Plaintiff claims Ark. Stat. Ann. § 31-501, et seq. (Repl. 1962) denies her due process of law insofar as they permit a postjudgment taking of property without notice and a prompt hearing for the purpose of allowing the judgment debtor the opportunity to claim exemptions. Ms. Davis also alleges that the garnishment statutes conflict with 15 U.S.C. § 1673 (1982) which prescribes the amount of wages which may be garnished and thus are in violation of the supremacy clause, U.S. Const. Art. VI, cl. 2.
Defendant Paschall filed a response admitting the facts as alleged by plaintiff, but denying the unconstitutionality of the garnishment procedure. Ms. Paschall also stated in her response that she stood prepared to comply with this court's findings and conclusions in the event the existing procedures were found to be inadequate to comply with due process. Defendant Michael Motors also admitted the allegations of fact and stated that it had tendered to plaintiff the sum of $222.23, the amount plaintiff alleges was wrongfully withheld from her wages.
The Office of the Attorney General of the State of Arkansas acknowledged compliance with Ark. Stat. Ann. § 34-2510 (Repl. 1962) by plaintiff's notice to that office of the lawsuit challenging the constitutionality of the garnishment procedure. By letter dated April 1, 1986, the Attorney General's Office stated that they did not wish to intervene in the pending action.
Until recently, the question of whether a judgment debtor was entitled to due process in the form of notice and a hearing to consider possible claims of exemptions was assumed to be settled by the decision of the United States Supreme Court in Endicott Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 288, 69 L. Ed. 288, 45 S. Ct. 61 (1924):
The 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 further notice and a 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."
It should be noted that the Supreme Court has signaled that its analysis of due process in debtor-creditor cases has begun to change with the cases of Mitchell v. W.T. Grant Co., 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974); Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 42 L. Ed. 2d 751, 95 S. Ct. 719 (1975). The holdings of these cases have been succinctly summarized in Note, Due Process, Postjudgment Garnishment, and "Brutal Need" Exemptions, 1982 Duke L.J. 192: