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When a creditor sought to garnish a woman’s wages, she challenged the constitutionality of a new Alabama garnishment law and – as required by law – notified the Alabama Attorney General of the challenge.  In Smith v. Renter’s Realty, the Alabama Court of Civil Appeals ruled that the Attorney General’s office must not only be mailed notice of the constitutional contest, but also that the mailing must arrive before the 11th hour.

A Garnishment Case

The appellant in Smith v. Renter’s Realty had been sued and her creditor received a judgment.  A few months later, the creditor sought to garnish Ms. Smith’s wages, which were approximately $900 received every other week.  Ms. Smith objected that she was exempt from garnishment because her wages fellow below the $1,000 exemption threshold established in the Alabama Constitution over 150 years ago.

A New Anti-Consumer Garnishment Law

The Alabama legislature in Montgomery tweaked the state’s garnishment laws in 2015 to make it easier for creditors to garnish wages.  Before the change in the law, the view was that Section 204 of the Alabama Constitution protected up to $1,000 in wages from garnishment for each pay period.  The new law tried to do away with the exemption for wages.  The appellant’s case challenged whether the new law could do away with the constitutional protection… but then the case got delayed in the mail.

Attorney General Get’s A Say When State Laws Are Challenged.

When a party to a case challenges the constitutionality of an Alabama law in an Alabama court, the litigant is required to give the Attorney General’s Office notice. Here Ms. Smith challenged the new law and that Attorney General’s office was entitled to notice that she was challenging the constitutionality of the law – and the Attorney General’s Office received that notice.

Three Days Not Enough Notice

Even though the Attorney General’s Office received notice, the Court said they didn’t receive early enough.  An attorney properly mailed the Attorney General’s office via certified mail but, for reasons not identified in the Court’s opinion, the mail took 20 days to reach the attorney general’s office.  When it did arrive, there were only three days left before the trial court’s hearing.  The Court ruled that the Attorney General was entitled to an opportunity to be heard or waive participation in the case.

Whether the matter sat unnoticed on the a desk in the attorney general’s office or the someone noticed and decided not to intervene the Court of Civil Appeals ruled that the Attorney General’s office did not get the opportunity to be heard because it received notice 3 days before the garnishment hearing.  Therefore, the Court of Civil Appeals sent the case back down to the trial court for 90 days during which time the Attorney General’s office may defend the law before the trial judge.

Impacts of the Case

The first impact of the Court’s ruling is that it puts an important case on hold.  How the Court of Civil Appeal (and possibly the Alabama Supreme Court) rule on the constitutionality of the new garnishment law will affect thousands of Alabamians.

Second, attorneys may want to go above and beyond certified mail notice when challenging the constitutionality of a statute.  This may include an additional posting by regular mail for which someone doesn’t have to sign (and therefore may eliminate a delay) or a call or email to someone in the Attorney General’s office.

Where to Learn More:

  1. Read one of the case attorney’s blog about garnishment and exemptions;
  2. Read the Alabama Court of Civil Appeals opinion here;
  3. Contact Browne House Law about your appeal.