[607] OPINION
PAYNE, Chief Judge.
This is an action brought to test the constitutionality of the New Mexico garnishment statutes.1 It is asserted that the statutes in question violate the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments. Plaintiffs ask this Court to permanently enjoin their enforcement. As the constitutionality of state statutes is involved and the questions raised are substantial, a three-judge court has been convened pursuant to 28 U.S.C. Sec. 2281.
On July 10, 1967, a money judgment in the amount of $157.91 was rendered in favor of defendant DeBaca and against plaintiffs by a Valencia County, New Mexico, District Judge. Defendant DeBaca thereafter initiated garnishment proceedings against the plaintiffs in a Bernalillo County Justice of the Peace Court. The Proceedings were dismissed, however, the Bernalillo County Justice of the Peace having no jurisdiction in the matter.
An initial question presented is whether the absence of a present garnishment proceeding against the plaintiffs in this suit makes the case moot. We conclude that a justiciable matter is presented by the facts of this case for the reason that the plaintiffs are subject to garnishment proceedings in the future. The garnishment proceedings brought in Bernalillo County on a Valencia County judgment were dismissed for jurisdictional reasons. Presumably, the plaintiffs are subject to garnishment in the proper jurisdiction at this time. Such “voluntary cessation of allegedly illegal conduct” does not deprive this Court of power to hear and determine the ease, “i. e., does not make the case moot”. United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, similarly holds that the threat of future application of a law argued to be unconstitutional presents a justiciable controversy, even though no present controversy exists.
Secondly, defendants urge that this Court should abstain in this case in order that the New Mexico State Courts might have an opportunity to pass upon the questions raised. There is, at present, a case pending before the New Mexico Supreme Court that would appear to duplicate the present action with respect to at least one issue. Such does not deprive this Court of the right, or the duty, to inquire into the constitutional questions raised, however, and this inquiry need not be postponed while the State Court appeal is completed. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), indicates the abstention doctrine should not be ordered “unless the state statute is of an uncertain nature, and is obviously susceptible to a limiting construction”. Note 14, page 251, 88 S.Ct. page 397. And, citing McNeese v. Board of Education, etc., 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, the Court observed that “abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim.” 389 U.S. 251, 88 S.Ct. 397. We do not believe application of the abstention doctrine would be appropriate in this case.
The first question presented with respect to the plaintiffs’ constitutional claims is whether under the facts of this case the New Mexico statutes are violative of due process requirements in that they permit deprivation of exempt wages without notice and a hearing. We have concluded that this question must be answered adversely to the plaintiffs.
According to Section 26-2-1, New Mexico Statutes Annotated, a writ of [608] garnishment may be issued in the following cases:
(1) In any case where an original attachment may be issued as provided by the attachment laws of the state of New Mexico;
(2) Where the plaintiff in any suit sues for a debt and he or someone for him makes affidavit that such debt is just, due and unpaid, and that the defendant has not within his knowledge property in his possession within this state subject to execution sufficient to satisfy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee.
(3) Where the plaintiff has a judgment against the defendant in some court of this state and he or someone for him makes affidavit that the defendant has not within his knowledge property in his possession within the state subject to execution sufficient to satisfy such judgment.
It is important to note that the creditor in the present case proceeded under subsection (3) above, and not under subsection (2). With this in mind, we conclude that Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288, is dispositive of the plaintiffs' contention regarding notice. The precise holding in that case, insofar as it bears on the present case, is that due process does not require that a judgment debtor shall be given notice and an opportunity to be heard before issuance of a garnishment to satisfy the judgment. The New York law discussed in Endicott-Johnson permitted garnishment following judgment, as does subsection (3) of Section 26-2-1, N.M.S.A., and the Supreme Court reasoned that the judgment debtor had already been provided with notice and an opportunity to be heard in the proceeding that resulted in the judgment against him. In addition, it may be observed, the plaintiffs here had actual notice of the garnishment, were represented by counsel, and made no attempt to claim their exemptions.
The plaintiffs secondly contend that the garnishment statutes deny equal protection of the law because they discriminate against debtors on the basis of wealth, nature of assets, and employment. This contention is directed toward the exemption provisions of the law, which, plaintiffs assert, discriminate unreasonably against wage earners as a class.
Free access — add to your briefcase to read the full text and ask questions with AI
[607] OPINION
PAYNE, Chief Judge.
This is an action brought to test the constitutionality of the New Mexico garnishment statutes.1 It is asserted that the statutes in question violate the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments. Plaintiffs ask this Court to permanently enjoin their enforcement. As the constitutionality of state statutes is involved and the questions raised are substantial, a three-judge court has been convened pursuant to 28 U.S.C. Sec. 2281.
On July 10, 1967, a money judgment in the amount of $157.91 was rendered in favor of defendant DeBaca and against plaintiffs by a Valencia County, New Mexico, District Judge. Defendant DeBaca thereafter initiated garnishment proceedings against the plaintiffs in a Bernalillo County Justice of the Peace Court. The Proceedings were dismissed, however, the Bernalillo County Justice of the Peace having no jurisdiction in the matter.
An initial question presented is whether the absence of a present garnishment proceeding against the plaintiffs in this suit makes the case moot. We conclude that a justiciable matter is presented by the facts of this case for the reason that the plaintiffs are subject to garnishment proceedings in the future. The garnishment proceedings brought in Bernalillo County on a Valencia County judgment were dismissed for jurisdictional reasons. Presumably, the plaintiffs are subject to garnishment in the proper jurisdiction at this time. Such “voluntary cessation of allegedly illegal conduct” does not deprive this Court of power to hear and determine the ease, “i. e., does not make the case moot”. United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, similarly holds that the threat of future application of a law argued to be unconstitutional presents a justiciable controversy, even though no present controversy exists.
Secondly, defendants urge that this Court should abstain in this case in order that the New Mexico State Courts might have an opportunity to pass upon the questions raised. There is, at present, a case pending before the New Mexico Supreme Court that would appear to duplicate the present action with respect to at least one issue. Such does not deprive this Court of the right, or the duty, to inquire into the constitutional questions raised, however, and this inquiry need not be postponed while the State Court appeal is completed. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), indicates the abstention doctrine should not be ordered “unless the state statute is of an uncertain nature, and is obviously susceptible to a limiting construction”. Note 14, page 251, 88 S.Ct. page 397. And, citing McNeese v. Board of Education, etc., 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, the Court observed that “abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim.” 389 U.S. 251, 88 S.Ct. 397. We do not believe application of the abstention doctrine would be appropriate in this case.
The first question presented with respect to the plaintiffs’ constitutional claims is whether under the facts of this case the New Mexico statutes are violative of due process requirements in that they permit deprivation of exempt wages without notice and a hearing. We have concluded that this question must be answered adversely to the plaintiffs.
According to Section 26-2-1, New Mexico Statutes Annotated, a writ of [608] garnishment may be issued in the following cases:
(1) In any case where an original attachment may be issued as provided by the attachment laws of the state of New Mexico;
(2) Where the plaintiff in any suit sues for a debt and he or someone for him makes affidavit that such debt is just, due and unpaid, and that the defendant has not within his knowledge property in his possession within this state subject to execution sufficient to satisfy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee.
(3) Where the plaintiff has a judgment against the defendant in some court of this state and he or someone for him makes affidavit that the defendant has not within his knowledge property in his possession within the state subject to execution sufficient to satisfy such judgment.
It is important to note that the creditor in the present case proceeded under subsection (3) above, and not under subsection (2). With this in mind, we conclude that Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288, is dispositive of the plaintiffs' contention regarding notice. The precise holding in that case, insofar as it bears on the present case, is that due process does not require that a judgment debtor shall be given notice and an opportunity to be heard before issuance of a garnishment to satisfy the judgment. The New York law discussed in Endicott-Johnson permitted garnishment following judgment, as does subsection (3) of Section 26-2-1, N.M.S.A., and the Supreme Court reasoned that the judgment debtor had already been provided with notice and an opportunity to be heard in the proceeding that resulted in the judgment against him. In addition, it may be observed, the plaintiffs here had actual notice of the garnishment, were represented by counsel, and made no attempt to claim their exemptions.
The plaintiffs secondly contend that the garnishment statutes deny equal protection of the law because they discriminate against debtors on the basis of wealth, nature of assets, and employment. This contention is directed toward the exemption provisions of the law, which, plaintiffs assert, discriminate unreasonably against wage earners as a class.
Neither of the exemption statutes that relate to garnishment in New Mexico are self-executing. A debtor must file a claim of exemption, and a hearing held, before the exempted wages may be recovered. Section 24-6-72 of the New Mexico Statutes is an “in-lieu of homestead exemption” in the amount of $500.00 available to the debtor not owning a homestead. Section 26-2-27 3 is a “head-of-household” exemption that [609] limits garnishment of the wages of the head of a family to twenty or twenty-five per cent of the wages owing, depending on the amount of salary involved. The in-lieu exemption does not apply to the first one-third of wages due the debtor. Thus, the wage earner is not entitled to have the $500.00 exemption under Section 24-6-7 applied to his total wages in the same way that the exemption may be applied against the total assets of non-wage earners. Plaintiffs contend this limitation is an unreasonable discrimination against wage earners. They argue that the distinction drawn between wage earners and other classes imposes burdens upon wage earners as a class that are clearly arbitrary, unreasonable, inequitable and unjust. We disagree with this conclusion.
Legislation such as that questioned in this case need not necessarily treat all groups equally. There is no constitutional prohibition of legislation which imposes special burdens upon defined classes in order to achieve a permissible end. The test is not whether a distinction between classes is drawn, but rather, whether “the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made’ ”. Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577.
We believe the distinctions that are drawn by the exemption statutes here in question are relevant to the purpose for which the classification of wage earners is made.
Were no distinction drawn by Section 24-6-7 between wage earners and other groups, the $500.00 in-lieu exemption would render the. garnishment law largely ineffective. Wage earners of the economic group frequented by garnishment proceedings would rarely have wages owing in excess of $500.00, and should they be permitted to apply the in-lieu exemption to their total wages as a non-wage earner may apply the exemption to his total assets, no wages subject to garnishment would remain. The limitation imposed as to wage earners and the classification inherent in such limitation seems to the Court to be reasonable and relevant to the Legislature’s obvious purpose in enacting a garnishment law.
The questions of whether the garnishment laws work a hardship upon the economically depressed, and whether or not the statutes need revision, are for the Legislature and not for this Court. It need not be testified to that the present provisions are oppressive, or that their effect upon low-income families is disastrous and that reasonable men might find this unacceptable. However, “(t)he criterion of constitutionality is not whether we believe the law to be for the public good.” Mr. Justice Holmes, dissenting in Adkins v. Children’s Hospital of District of Columbia, 261 U.S. 525, 570, 43 S.Ct. 394, 406, 67 L.Ed. 785. We may not declare a statute unconstitutional solely upon the ground that it is unjust and oppressive and will work hardship upon the poor. Fisch v. General Motors Corporation, 169 F.2d 266 (6th Cir., 1948).
From all of the foregoing, it is the opinion of this Court that no relief should be granted in this case. Accordingly, the cause of action should be, and it is hereby dismissed.