Dionne v. Bouley
| Decision Date | 19 March 1985 |
| Docket Number | Nos. 84-1258,84-1280,s. 84-1258 |
| Citation | 757 F.2d 1344 |
| Parties | , 9 Soc.Sec.Rep.Ser. 141, Unempl.Ins.Rep. CCH 16,402 Rose DIONNE, etc., Plaintiff, Appellee, v. Gerard BOULEY, etc., Defendant, Appellant. Rose DIONNE, etc., Plaintiff, Appellant, v. Gerard BOULEY, etc., Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Andrew S. Richardson, Providence, R.I., with whom John W. Dineen, Robyn Y. Davis, and John Rao, Providence, R.I., were on brief, for Rose Dionne.
Marilyn F. McGair, Sp. Asst. Atty. Gen., Cranston, R.I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R.I., was on brief, for Gerard Bouley.
Steven H. Musen and Peter D. Shore, Providence, R.I., on brief as amicus curiae.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, * District Judge.
This case concerns the constitutionality of the post-judgment garnishment procedure of Rhode Island. It raises the question whether Rhode Island law provides adequate notice to a judgment debtor whose property is attached of any right he may have under state or federal law to have his property exempted from attachment, and of the means for claiming such exemption, and whether Rhode Island affords an adequate opportunity for a prompt hearing at which the question of exemption can be determined. The United States District Court for the District of Rhode Island, in a comprehensive opinion, Dionne v. Bouley, 583 F.Supp. 307 (1984), held that current procedures were constitutionally insufficient. It enjoined defendant Gerard Bouley, Chief Clerk of the District Courts of the State of Rhode Island, from issuing writs of attachment thereunder. We modify and affirm.
On July 26, 1982, plaintiff Rose Dionne was the losing party in an action of eviction brought against her by her landlord in the Second Division District Court of Rhode Island. The judgment included an order that she pay one month's rent, a sum of $550. Pursuant to the judgment, an execution was issued against Dionne, which was returned to the state court marked "unsatisfied." Thereafter, the judgment creditor obtained a writ of attachment from the clerk of the state court under R.I.Gen.Laws Sec. 10-5-2 1 (1969 Reenactment) (Supp.1983) and Rule 4(j)(2) 2 of the state district court, and served the writ on Dionne's bank. As a result, the bank "froze" her bank account on August 13, 1982.
At the time this occurred, Rhode Island law permitted any creditor who was unable to execute his judgment to file a second "debt on judgment" action against the debtor and to attach the debtor's property as security for this second suit. 3 Dionne's bank account was attached 4 pursuant to a suit of this nature filed by the creditor under R.I.Gen.Laws Sec. 9-28-1 5 (1969 Reenactment), in which the creditor sought another money judgment in the amount of $551.80 plus costs of $50. Dionne was served with process in this second action on August 17, 1982. 6 That same day, she received notice from her bank that one of her checks had been returned for insufficient funds and that the bank was imposing a $5 service charge for the check's return. On calling the bank to inquire about this, Dionne was told that her funds had been attached.
Dionne's checking account contained $601 when it was attached, most of which consisted of social security benefits paid to her and her four minor children, with a small portion of the account being attributable to her wages. 7 Under federal law, 8 social security benefits are not subject to "attachment, garnishment, or other legal process...." Other exemptions, federal and state, also exist which might have pertained to some or all Dionne's monies in this account. See, e.g., 15 U.S.C. Sec. 1673 (1982); R.I.Gen.Laws Sec. 9-26-4(12)(a) (1969 Reenactment) (Supp.1984). Dionne, who was solely responsible for the support of herself and her children, was unaware of, and was not provided with notice of, any procedures through which she could challenge the attachment or raise a claim that some or all of the property was exempt.
According to the parties' stipulations it was the practice of the state district court to issue blank writs of attachment upon request, with the name of the clerk and the seal already affixed, to creditors or their attorneys. No motion to attach was required with these, the writ being simply served directly on the trustee (i.e., bank, employer). The parties also stipulated that there was no required hearing or notice of any possible hearing, either before or after the writ of attachment was issued and served, and that there was no notice to the judgment debtor of any possible defenses or exemption claims.
A short time after learning of the attachment, on September 14, 1982, Dionne brought this action in the federal district court challenging the constitutionality of the postjudgment garnishment procedure in the state district court system. She asserted causes of action under 42 U.S.C. Sec. 1983 for alleged violation of the due process and supremacy clauses of the federal Constitution. Dionne criticized the state's failure to have provided her with a prompt notice of the attachment that would have informed her of the existence of the state and federal exemptions and the means for her to claim them. She further criticized the lack of any specific provision in Rhode Island law for a hearing, either prior to the attachment or immediately following the issuance and service of the writ, at which any exemptions could be claimed. She requested declaratory and injunctive relief, and class certification.
On or before the filing of this suit, the judgment debtor released the attachment of Dionne's bank account, leaving her once more in control of her funds.
In November 1982, Dionne moved to certify a class of all judgment debtors in Rhode Island who might have been subject in the future to post-judgment attachment procedures and whose funds might have been exempt in whole or in part under state or federal statutory exemptions. Defendant opposed this motion. On March 18, 1983, the district court denied certification on the ground that any injunctive relief awarded "would inure to the benefit of all those similarly situated, and would be identical regardless of whether or not the action is maintained as a class action."
Thereafter, Dionne moved for summary judgment, most of the above facts having been previously stipulated by the parties. On March 23, 1984, the district court issued its opinion and order, 583 F.Supp. 307, declaring the challenged procedure unconstitutional and issuing the requested injunction. Defendant appeals from the judgment below asserting that the case was moot, that the district court should have abstained, and that the challenged procedures are not unconstitutional. Dionne cross-appeals claiming that the district court erred in denying class certification. An amicus curiae brief favoring the constitutionality of the Rhode Island procedure has been submitted by Rhode Island attorneys practicing in the field of collection law.
While the attachment of Dionne's bank account was released at or before the time she filed this action, the district court ruled that the case was not moot because the underlying dispute was "capable of repetition, yet evading review." 583 F.Supp. at 312. See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). To come within this exception, there had to be present two elements: (1) the activity being challenged must, by its nature, be of such short duration that it is unlikely to be fully litigated before its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party will be subjected to the same acts again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Loeterman v. Town of Brookline, 709 F.2d 116, 118 (1st Cir.1983). We agree with the district court that this case meets these requirements.
The Third Circuit faced a similar situation in Finberg v. Sullivan, 634 F.2d 50 (1980) (en banc). In Finberg a social security recipient's checking and savings accounts were garnished under Pennsylvania post-judgment attachment procedures. The recipient brought a state court action to set aside the attachment and also sued in the federal district court attacking the constitutionality of the Pennsylvania procedures. Within five months after commencement of the state action, and before plaintiff's constitutional claim was adjudicated by the federal court, the state court released the attachment. Thereafter, the district court held against plaintiff on the merits of her constitutional claim. The court of appeals reversed. Addressing the contention that the federal action was moot, the Third Circuit wrote,
In the present case, Mrs. Finberg does have some reason to fear that she will suffer another attachment of her bank accounts. She remains a judgment debtor. As the record indicates that she is an elderly widow with a modest income, this judgment could remain unsatisfied for some time. Future efforts to execute the judgment are therefore likely. Sterling [the creditor] might repeat its attempt to garnish the accounts. For example, when new funds accumulate in the accounts, Sterling might find that the garnishment process is the most efficient way of determining whether any of the new funds are exempt. We also cannot disregard the possibility that a successor to Sterling's interest, such as a collection agency could make such an attempt.
Furthermore, Mrs. Finberg's modest income and the difficulties that she has demonstrated in this case in meeting the demands of a creditor indicate that she may incur another money judgment and suffer an attempted garnishment to execute it....
....
Mrs. Finberg also can show that any recurrence probably...
To continue reading
Request your trial
-
Follette v. Vitanza
...creditors by the mandates of the fourteenth amendment. See McCahey v. L.P. Investors, 774 F.2d 543 (2d Cir.1985); Dionne v. Bouley, 757 F.2d 1344 (1st Cir. 1985); Finberg v. Sullivan, 634 F.2d 50 (3d Cir.1980) (en banc); Diotte v. Blum, 585 F.Supp. 887 (N.D.N.Y.1984) (Miner, J.); Deary v. G......
-
Dorwart v. Caraway
...continued viability in light of modern-day due process jurisprudence. See, e.g., Finberg, 634 F.2d at 56-57; Dionne v. Bouley (1st Cir.1985), 757 F.2d 1344, 1351; Deary, 534 F.Supp. at ¶82 We are persuaded by the reasoning of the above cases. As a result, we conclude that, insofar as Dorwar......
-
Guckenberger v. Boston University
...plaintiffs do not need to proceed as a class in order to obtain the requested injunctive and declaratory relief. In Dionne v. Bouley, 757 F.2d 1344, 1355 (1st Cir.1985), the First Circuit considered whether courts in this jurisdiction must adopt "a practice, followed by several circuits, of......
-
Laubinger v. Department of Revenue
...offer made by the department in the Superior Court. We assume payment will be made forthwith.This case is unlike Dionne v. Bouley, 757 F.2d 1344, 1348-1349 (1st Cir.1985), where a question was not considered moot after a release of lien. Here the matter will probably not arise again as Joyc......
-
Is Georgia's Post-judgment Garnishment Statute Still Unconstitutional?
...interests of buyer and seller" Id. at 610.). [16] Finberg v. Sullivan, 634 F.2d 50, 58 (3d Cir. 1980). [17] See, e.g., Dionne v. Bouley, 757 F.2d 1344, 1351-52 (1st Cir. 1985) ("As respects the judgment debtor's rights in property which the law specifically exempts from the judgment credito......