Passing Constitutional Muster after Strickland v. Alexander

In a forty-eight page decision released on September 9, 2015, the Court in Strickland v. Alexander, (U.S. D. Ct. N. D. Ga. Case Number 1:12-CV-02735-MHS) struck down portions of Georgia’s garnishment statute, O.C.G.A. §18-4-60 et seq., for failure to give judgment debtors sufficient notice of their rights to claim statutory exemptions and for further failing to create a procedure that timely adjudicates any exemption claims. The decision calls into question the efficacy of thousands of garnishments filed by judgment creditors both past and prospectively. Ruling essentially on a due process basis, the Court employed a balancing test of the judgment creditor’s right to a prompt and inexpensive means of obtaining a satisfaction of a debt versus a debtor’s basic need to have minimal resources on which to subsist. Important to the Court in Strickland was the fact that the debtor received no notice whatsoever in the process of garnishment as to what, if any, exemption rights he might hold or how to claim those exemptions. The entire amount garnished of some $15,652.67 was subject to protection as the proceeds of a workmen’s compensation settlement that were held in a segregated account. From the date of service of the garnishment to release of the exempt funds, the judgment debtor was deprived of the use of his money for 115 days. The Court found this lack of notice and delay to be unconstitutional.

Whether one agrees or disagrees with the Strickland decision, the more important question is how to deal with compliance. Historically, Georgia’s many county clerks have had little uniformity in the creation of forms that may be used on a statewide basis to provide consistent treatment of a myriad of post-judgment collection mechanisms. Both the forms and local procedures vary in almost every one of Georgia’s 159 counties. This piecemeal approach to procedure creates a challenge for courts, clerks, lawyers and litigants alike. A potential solution, however, may be borrowed from just across the border in Alabama.

While Strickland is cutting edge law in Georgia, the question of giving notice of exemption rights to debtors in a manner that passes constitutional muster is long settled under Alabama law. In the case of Green v. Harbin, 615 F. Supp. 719 (N.D. Ala. 1985), the Court there was confronted by the identical question raised in Strickland. And, just as in Strickland, the Harbin Court relied upon Finberg v. Sullivan, 634 F. 2d 50 (3d. Cir. 1980) (en banc), to strike down Alabama’s equally deficient exemption notice and claim procedures. In response, the Alabama Supreme Court promulgated an emergency rule which shortly became codified as Rule 64A, Alabama Rules of Civil Procedure which is the functional equivalent of the Georgia Civil Practice Act. By rule, the Alabama Supreme Court mandated that every county in the state use a uniform exemption notice which sets out in plain language both the basic exemptions granted to debtors and a simplified process for making a claim of exemption. This puts the burden on a judgment creditor to contest the claim on an expedited time frame. This uniform notice may be found here, and readers interested in employing a solution that is likely compliant with Strickland are commended to its reading as the Alabama version of Rule 64A has now withstood constitutional challenge for 30 years.

The fix for Georgia, however, may not be so simple as that employed in Alabama which follows the federal model of allowing the Alabama Supreme Court to promulgate its own rules of procedure. Because revisions to the Georgia Civil Practice Act are controlled by the legislature, the enactment of a rule similar to that utilized by Alabama is a more complex and time consuming process. In the meantime, those Georgia Courts that seek to comply with the constraints of Strickland may rely upon O.C.G.A. §9-11-83 which permits “[e]ach court by action of a majority of the judges… to make and amend rules governing its practice…” Although the interim use of local rules to implement compliance with Strickland may create a piecemeal solution, it appears to be the best option while the Georgia judiciary awaits an amendment to the Georgia Civil Practice Act by the legislature.