Georgia’s top lawyer considering ways to fix flawed garnishment law

Days after Georgia’s garnishment law was called unconstitutional by a federal judge, the state’s Attorney General said he was considering ways to fix the law’s flaws.

“The Attorney General’s office wants to show the judge that we are exploring ways to resolve the problems that he cited in the case,” spokesman Nick Genesi said in an email Friday. “We will continue to work with judges and legislators around the state to come up with a solution.”

Genesi said he could provide no more details on what options were being explored.

The Tuesday ruling in U.S. District Court only stopped garnishments in Gwinnett County, where more than a third of all the state’s garnishments are filed. But William Randall, chief judge of civil and magistrate court in Bibb County, said he thought the ruling could bring the process to a standstill statewide.

“If a judge in the Northern District declared it unconstitutional, I might walk lightly,” Randall said. “It’s probably going to happen all over the state.”

The law is flawed, U.S. District Court Senior Judge Marvin H. Shoob wrote in his ruling, because it violates the constitution’s due process clause.

Georgia does not require creditors to tell debtors that some money — like Social Security benefits, welfare payments or workers’ compensation — cannot be garnished. When that money is taken improperly, the state law doesn’t require creditors to tell people how to get it back. It also doesn’t provide a timely procedure for determining whether money that was taken should have been exempt, Shoob wrote.

“The procedures for claiming an exemption from garnishment are not clearly set forth anywhere in Georgia’s post-judgment garnishment statute,” he wrote. “Nowhere does the statute even mention ‘exemptions’ in connection with any procedure that is available to judgment debtors. Nor does the State cite any other publicly available document where this information may be found.”

Georgia’s process, he wrote, is “arcane.”

In order for garnishments to resume in Gwinnett County, debtors will need to be informed of what money may be safe from being garnished and how to get it back if it is taken when it should not be.

Because the ruling does not affect the process in other counties, Richard Howe, managing partner of the collections firm Howe & Associates, said he will continue to file garnishments outside of Gwinnett. Other courts previously have ruled in favor of the law’s constitutionality, he said.

But Erik Heath, the attorney who argued the case that challenged the law, said creditors who file garnishments in other counties could be held liable if they knowingly use an unconstitutional process.