State Treasurer v. Gardner, Docket No. 167791

• Decision Date: 25 February 1997
• Docket Number: Docket No. 167791
• Parties: STATE TREASURER, Plaintiff-Appellee, v. James Alven GARDNER, Sr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 51

564 N.W.2d 51

222 Mich.App. 62

STATE TREASURER, Plaintiff-Appellee, v. James Alven GARDNER, Sr., Defendant-Appellant.

Docket No. 167791.

Court of Appeals of Michigan.

Submitted March 15, 1997, at Lansing.

Decided February 25, 1997, at 9:35 a.m.

Released for Publication May 15, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and E. David Brockman and Daniel M. Levy, Assistant Attorneys General, for plaintiff-appellee.

Prison Legal Services of Michigan, Inc. by Sandra Girard, Jackson, for defendant-appellant.

Before MARILYN J. KELLY, P.J., and WAHLS and M.R. KNOBLOCK ^*, JJ.

MARILYN J. KELLY, Presiding Judge.

Defendant appeals by leave granted from an award to plaintiff of ninety percent of all accrued and future benefits he receives from his disability pension. He argues that he was denied due process when the trial court allowed plaintiff's counsel to appear and argue at the court hearing, but denied him the same opportunity. He asserts that M.C.L. § 600.6023(1)(f); M.S.A. § 27A.6023(1)(f) prohibits execution on his disability pension. Finally, he argues that garnishment of his disability pension is limited by federal law. We affirm in part, but modify the percentage of defendant's pension that can be appropriated.

Defendant has been a prisoner in the custody of the Department of Corrections since January 23, 1990. Plaintiff brought suit under the State Correctional Facility Reimbursement Act (SCFRA), M.C.L. § 800.401 et seq.; M.S.A. § 28.1701 et seq., for reimbursement of the cost of defendant's care while incarcerated. David Viele, Assistant Deputy Director of the Bureau of Administrative Services of the Michigan Department of Corrections, estimated the cost of defendant's care until his earliest possible release date to be $124,750. Plaintiff sought to obtain ninety percent of the proceeds from defendant's long term disability pension to pay for defendant's care.

On December 16, 1991, the trial court ordered defendant to show cause why his disability pension assets should not be appropriated to reimburse the state for the cost of his confinement. Defendant did not appear at the hearing, but submitted pleadings for the trial court's review. Plaintiff's counsel appeared and argued the state's position. The trial court ordered ninety percent of all accrued and future benefits received from the disability pension to be turned over to plaintiff.

I

First, defendant argues that the trial court denied him his due process rights by not sua sponte issuing a writ of habeas corpus to secure his attendance at the show cause hearing. He asserts that a refusal to allow a prisoner to appear and argue while giving the same right to the opposing party is a denial of due process, citing Lawrence v. Dep't of Corrections, 81 Mich.App. 234, 265 N.W.2d 104 (1978).

We agree with defendant that the SCFRA provides for a hearing on the state's complaint. M.C.L. § 800.404; M.S.A. § 28.1704. However, the circumstances in Lawrence are distinguishable from those in the instant case. In Lawrence, the plaintiff, an inmate at Jackson Prison, alleged that when he was placed in a detention cell his personal property was lost, stolen or destroyed. Lawrence, supra at 236, 265 N.W.2d 104. He sued alleging that prison officials breached their duty to him to exercise reasonable care. Id.

The Attorney General moved for summary disposition, and a copy of the motion was mailed to the plaintiff five days before the hearing. Id. at 237, 265 N.W.2d 104. The court denied plaintiff's application for a writ of habeas corpus, which would have allowed him to be present for oral argument. Id.

This Court ruled that the plaintiff was denied due process, because he was not served with the motion in time to afford him a reasonable opportunity to prepare and answer. Id. at 238, 265 N.W.2d 104. The Court also held that it was an abuse of discretion for the trial court to allow the Attorney General to present oral argument and deny the plaintiff the same opportunity. Id. at 239, 265 N.W.2d 104.

Here, defendant had sufficient notice of the show cause hearing. In fact, he submitted pleadings for the trial court's review. Furthermore, unlike the plaintiff in Lawrence, defendant did not apply for a writ of habeas corpus that would have allowed him to be present for oral argument. Due process does not require that the trial court sua sponte issue a writ of habeas corpus to secure a party's presence. It requires notice and an opportunity to be heard. Mudge v. Macomb Co., 210 Mich.App. 436, 441, 534 N.W.2d 539 (1995). Defendant had both in this case. His due process rights were not violated.

II

Next, defendant argues that M.C.L. § 600.6023; M.S.A. § 27A.6023, which exempts property from levy and sale, precludes execution on his disability pension. We disagree.

The SCFRA was enacted to establish procedures for reimbursement to the state for expenses incurred in the housing of prisoners. State Treasurer v. Cuellar, 190 Mich.App. 464, 467, 476 N.W.2d 644 (1991). It provides that not more than ninety percent of a prisoner's "assets" may be recovered in an action by the state for prison reimbursement. M.C.L. § 800.403; M.S.A. § 28.1703. The SCFRA defines assets as "property, tangible or intangible, real or personal, belonging to or due a prisoner ... including ... pension benefits...." M.C.L. § 800.401a(a); M.S.A. § 28.1701(1)(a).

By contrast, M.C.L. § 600.6023; M.S.A. § 27A.6023 governs the relationship between judgment creditors and debtors. It provides:

(1) The following property for the debtor and the debtor's dependents shall be exempt from levy and sale under any execution:

* * * * * *

(f) Any money or other benefits paid, provided, or allowed to be paid, provided, or allowed, by any stock or mutual life or health or casualty insurance company, on account of the disability due to injury or sickness of any insured person, whether the debt or liability of such insured person or beneficiary was incurred before or after the accrual of benefits under the insurance policy or contract, except that the exemption does not apply to actions to recover for necessities contracted for after the accrual of the benefits.

Defendant argues that M.C.L. § 600.6023; M.S.A. § 27A.6023 is controlling, because it was amended more recently than the enactment of the SCFRA. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. State Treasurer v. Schuster, 215 Mich.App. 347, 351, 547 N.W.2d 332 (1996); Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993). The Legislature is presumed to be familiar with rules of statutory construction. When promulgating new laws, it is charged with knowledge of existing laws on the same subject and presumed to have considered their effect on any new legislation. Walen v. Dep't of Corrections, 443 Mich. 240, 248, 505 N.W.2d 519 (1993).

However, where two statutes conflict, and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. Gebhardt v. O'Rourke, 444 Mich. 535, 542-543, 510 N.W.2d 900 (1994). This is true even where the specific statute was enacted before the general one. Bauer v. Dep't of Treasury, 203 Mich.App. 97, 100, 512 N.W.2d 42 (1993).

In Schuster, this Court held that the plaintiff could not seek reimbursement from the defendant's retirement allowance. The Court reasoned that the Public School Employees Retirement Act (PSERA), M.C.L. § 38.1301 et seq.; M.S.A. § 15.893(111) et seq., was controlling, because it was more specific than the SCFRA. The PSERA deals specifically with a public school employee's retirement allowance and protects it from legal process. Schuster, supra at 353, 547 N.W.2d 332. In the context of the case, the SCFRA was held to be more general in scope. The reasoning was that it deals with the ability of the state to seek reimbursement for costs from a prisoner's property in general. Id. at 352, 547 N.W.2d 332.

The instant case, however, is markedly different from Schuster. M.C.L. § 600.6023; M.S.A. § 27A.6023 does not address merely disability pension benefits. Rather, it governs the general relationship between judgment creditors and debtors. The SCFRA deals with the precise issue before us today: state reimbursement claims against prisoners. Therefore, we find it controlling. Bauer, supra. Because the SCFRA is more specific, M.C.L. § 600.6023; M.S.A. § 27A.6023 does not preclude plaintiff from seeking reimbursement from defendant's disability pension.

III

Defendant's last argument is that garnishment of his disability pension is limited by the Garnishment Restrictions subchapter of the Consumer Credit Protection Act. 15 U.S.C. § 1671 et seq. The intent of that subchapter is to grant an exemption for wage earners from burdensome garnishments, to protect employment of wage earners and to prevent bankruptcies. Gerry Elson Agency, Inc. v. Muck, 509 S.W.2d 750 (Mo.App.1974). 15 U.S.C. § 1673 provides, in pertinent part:

(a) Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed

(1) 25 per centum of his disposable earnings for that week....

* * * * * *

(b)(1) The restrictions of subsection (a) of this section do not apply in the case of

(A) any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by State law, which affords substantial due process, and which is subject to judicial review.

* * * * * *

(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed--

(A) where such individual is supporting his spouse...