The attorney general and Gwinnett County’s clerk of court have asked a federal judge to allow some forms of garnishment to proceed, weeks after the judge said the state’s process is unconstitutional.
No garnishments have been processed in Gwinnett since Sept. 8, when U.S. District Court Judge Marvin H. Shoob said Georgia’s process was flawed. While the judge only halted garnishments in Gwinnett County, where a lawsuit was brought against the clerk of court, other metro Atlanta counties have changed their own rules or stopped garnishments all together while they wait for the attorney general’s guidance.
The suit in Gwinnett was related to garnishments that take money out of bank accounts to satisfy an individual’s unpaid debts, but Shoob’s ruling also stopped commercial garnishments, wage garnishments and garnishments for unpaid alimony or child support.
Shoob said the garnishment law is flawed, in part, because it does not require creditors to tell debtors that some sources of income, such as Social Security benefits or workers’ compensation, cannot be garnished. The existing law also does not guarantee a quick process to challenge garnishments.
Gwinnett clerk of court Richard Alexander asked the judge to “alter or amend” his ruling to limit its scope, saying wage and child support garnishments were not unconstitutional.
Neither Alexander nor Attorney General Sam Olens would comment further on their requests. Olens, in his filing Friday, also asked the judge to reconsider his ruling that the law is unconstitutional.
“Since the Court issued its Order … courts throughout the State have scrambled to comply with the Court’s sweeping mandate,” Olens wrote. “As a result of the Court’s declaration and injunction, clerks of court, including Defendant, have entirely ceased issuing summons of garnishments, and some have refused to issue any pending disbursements until further order of this Court. Due to the drastic effects this Court’s order has had, and will continue to have, on post-judgment garnishment actions in this State, the State urges the Court to reexamine its Order.”
Both Fulton and Henry county have stopped processing garnishments, and DeKalb and Cobb counties have changed their procedures in an attempt to comply with Shoob’s ruling.
Erik Heath, an attorney who brought the case that led to the ruling, said Olens’ argument about the law’s constitutionality has already been rejected. The idea that some garnishments should be able to proceed as normal is also wrong, Heath said. Because all garnishments use the same process, it cannot be unconstitutional for some and OK for others.
“The court would actually have to grant permission to violate the constitution,” he said.
Heath, who filed his own response to the Gwinnett County filing Monday, said in that response that there are “no compelling reasons to allow these variations to the unconstitutional process.” Wage garnishments sometimes take more money then is legally allowed, he said, and therefore need the same protections. Child support garnishments are rarely used, and have alternatives, he said.
About the Author
