source: Caselaw Access Project

author: LONGOBARDI, District Judge.

license: Public Domain

text:
    Paul L. GANN and Ruth Ann Gann, as Co-Administrators of the Estate of John E. Gann, and Paul L. Gann and Ruth Ann Gann, Individually, Plaintiffs, v. Patricia SCHRAMM, et al., Defendants.
    Civ. A. No. 81-165 LON.
    United States District Court, D. Delaware.
    April 18, 1985.

      Bayard Marin of Marin and Hudson, Wilmington, Del., for plaintiffs.
    Matthew J. Lynch, Jr. (argued), Michael F. Foster and Rhonda A. Hauge of Dept, of Justice, Wilmington, Del., for defendants Schramm, Schweidel, Feeney, Buckley, Tonogbanua, Ausejo and Craig.
    Warren Burt, Wilmington, Del., for defendant Vergara.
   OPINION

LONGOBARDI, District Judge.

This is a civil rights action brought under 42 U.S.C. § 1983. The Plaintiffs, Paul L. Gann and Ruth Ann Gann, are suing in their representative capacities as co-administrators of the estate of their son, John E. Gann, and individually. They allege that the actions of the Defendants violated John Gann’s rights under the due process and equal protection clauses of the United States Constitution. They seek damages, attorney’s fees and costs. The Defendants claim they are entitled to summary judgment because the complaint does not allege a constitutional violation and, further, because they are entitled to official immunity.

BACKGROUND

The action arises from John Gann’s suicide of December 19, 1980, while he was a patient at the Delaware State Hospital.

John Gann had been involuntarily committed to the Delaware State Hospital (“DSH”) on December 12, 1980. At that time, he had an extensive history of severe mental illness and had made what appeared to be several attempts on his life. In the two years prior to the December 12 admission, he had been twice admitted to DSH and had also spent time at the Governor Bacon Health Center.

Gann’s admission on December 12, 1980, was based upon the recommendation of a doctor at the Wilmington Medical Center where Gann had been admitted after his mother found him with a plastic bag over his head suffering from the effects of sniffing glue. Upon admission, Gann was examined by Dr. Tonogbanua of the DSH staff who concluded that the effects of the glue made it difficult to assess Gann’s mental condition. The doctor assigned Gann to the Admissions Ward and placed him on “close observation.” He rejected the idea of putting Gann on the more restrictive “one to one” observation because he felt there was no indication Gann was a serious threat to himself. After this assessment, Dr. Tonogbanua did not treat John Gann during the remainder of his stay at DSH.

Two hours after his admission, Dr. Ausejo and Dr. Vergara, staff psychiatrists at DSH, observed Gann during their regular ward rounds. After reviewing Gann’s records, the doctors continued Dr. Tonogbanua’s recommendation of “close observation” for Gann. This recommendation was extended on December 15, 1980, after the two doctors examined Gann again. On December 16, Dr. Vergara, Dr. Ausejo and the rest of Gann's treatment team met to decide whether Gann should be committed to DSH. After offering Gann the opportunity for voluntary commitment, which he strongly opposed, the team elected to involuntarily commit him under the provisions of 16 Del. C. § 5003. The commitment was based upon the doctors’ conclusion that Gann’s “disease or condition poses a threat based upon manifest indications that the patient is likely to commit or suffer serious harm to himself if not given immediate hospital care and treatment.”

At 10:00 p.m. on that same day, Gann escaped from the ward by picking the lock on the screen to his window. He was apprehended by a state policeman after a fifteen minute absence. Upon his return, he was strip searched for contraband and then examined by another staff doctor at DSH who ordered a sleeping pill for him.

The next morning, Dr. Ausejo and Dr. Vergara came to see Gann while on their morning rounds. He was still asleep and they decided not to wake him. Again, “one to one” observation was not instituted. His “close observation” status was continued. After a roll call that same evening, sometime after 9:00 p.m., John Gann was reported missing from the Admissions Ward. A search of the ward was instituted and Gann was not found.

On the morning of December 19 at approximately 5:00 a.m., John Gann was found dead in the closet of his room in the Admissions Ward. A plastic bag like the type used in the DSH kitchen was found over his head. The autopsy conducted by the Medical Examiner’s Office revealed that the cause of death was asphyxia from the placement of a plastic bag over the head.

The Plaintiffs claim that this series of events violated their son’s rights under the fourteenth amendment. In particular, the thrust of their complaint is that the whole incident as described above constituted a denial of John Gann’s rights to safety and the security of his person while involuntarily committed to State care. They also contend that in light of Gann’s propensity for harming himself, the Defendants’ classification calling for only “close observation” amounted to a denial of equal protection. Apparently the claim is that people who threaten suicide should all be treated equally for security purposes and that such a situation requires “one to one” observation. The Defendants claim that no constitutional violation took place and that they are entitled to summary judgment. In considering the Defendants’ motion, the Court is mindful of the well established standard for summary judgment. Summary judgment may only be granted if the record before the court shows that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden of proving that the standard has been met is on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1976).

EQUAL PROTECTION CLAIM

The Plaintiffs have alleged that the Defendants’ actions violated John Gann’s rights under the equal protection clause of the fourteenth amendment. The equal protection clause “is a pledge of the protection of equal laws”, Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886), and “was intended as a restriction on state legislative action inconsistent with elemental constitutional premises.” Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982). The first step in any equal protection claim is to establish that a recognizable, distinct class is “singled out for different treatment under the laws as written or as applied.” Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977); Wayte v. United States, — U.S:-,---n. 10, 105 S.Ct. 1524, 1531-1532 n. 10, 84 L.Ed.2d 547 (1985). In the present case, the Plaintiffs have made no showing that Gann was a member of any “identifiable group” singled out for different treatment under the laws. They have not alleged that any state statute, regulation or practice has effected discrimination against a recognizable group of which their son is a member. They merely claim that actions of state employees on one particular occasion violated their son’s constitutional right to a safe environment. Since the actions complained of were not taken pursuant to a classification embodied in state law or practice, equal protection analysis does not provide a framework for resolving the issue. Further, the equal protection clause does not require things which are different in fact to be treated in law as though they were the same. Plyler v. Doe, 457 U.S. at 216, 102 S.Ct. at 2394. The implicit suggestion in the Plaintiffs’ argument is that the equal protection clause requires that all patients who threaten suicide deserve exactly the same intensity of medical observation regardless of the seriousness of the threat. Such a premise is patently unsound. The basis of the equal protection clause is that individuals who are similarly situated must not be treated differently. Yet, a function of medical diagnosis is to determine in what ways individuals are not similarly situated so that they can be treated accordingly. Such rationally based differentiation clearly does not violate the equal protection clause.

DUE PROCESS CLAIM

The Plaintiffs also claim that the Defendants’ actions violated the due process clause of the fourteenth amendment. For the purposes of this motion, the Court will assume the Plaintiffs are claiming only a violation of substantive due process since the specifics of a procedural due process claim have not been alluded to by the Plaintiffs. See, Gann v. Delaware State Hosp., 543 F.Supp. 268, 273 n. 6 (D.Del.1982).

The analysis of claims under section 1983 alleging violations of the fourteenth amendment’s due process clause commences with fundamentals established in a line of cases running from Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), through Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The statute itself reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress____

In essence, there are four prerequisites to constitute a valid claim under section 1983; that is, (1) the defendants must have acted under color of state law; (2) the conduct must have implicated a life, liberty or property interest; (3) a deprivation of the particular interest; and (4) the deprivation was without due process of law.

The Defendants in this case are state employees who were at all pertinent times carrying out responsibilities within the scope of their employment. As such, their actions were under color of state law. Monroe v. Pape, 365 U.S. at 172-85, 81 S.Ct. at 476-83.

In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court held that the right to personal security is an “ ‘historic liberty interest’ protected substantively by the Due Process Clause.” Id. at 315, 102 S.Ct. at 2458. In this case, Gann suffered the ultimate deprivation, death. Obviously, elements 1, 2 and 3 have been satisfied, leaving as the crux of the problem whether the conduct which amounted to a deprivation of a liberty interest was without due process.

Although life and liberty are fundamental constitutional interests, they are not absolute. Consequently, the determination of whether the deprivation amounts to a substantive violation of due process requires a case by case analysis. The standard for determining when liberty interests are violated in a mental hospital setting is found in Youngberg, 457 U.S. at 321, 102 S.Ct. at 2461. The formulation takes into consideration the competing and often conflicting interests of individuals such as John Gann as against the State’s interest in administering to the needs of the mentally disturbed and, in particular, rendering medical opinions as to treatment and safety. On the one hand is the obligation of protecting the liberty (life) interests of committed persons and, on the other hand, is the obligation to render opinions regarding their safety in a way that is compatible with the need to service their malady. To say, for instance, that all mentally disturbed persons must be accorded absolute safety without regard to the nature and severity of the mental disorder or without regard to the uniqueness of the individual under treatment would destroy much of the value of what the professional has to offer and, indeed, frustrate to a great degree the societal needs assumed by the State in agreeing to care for these people. Without professional judgment and discretion, the execution of preordained treatment programs would lead to abhorrent results. The balancing of these conflicting interests leads ineluctably to the conclusion that for constitutional purposes, it is enough if professional judgment is rendered. The Supreme Court has decided that, “liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462.

The Defendants have represented to the Court that professional judgment was exercised in the treatment of John Gann. The Plaintiffs, however, have filed an opposing affidavit which states that the Defendants’ actions “departed so significantly from acceptable standards of professional judgment, practice or standards as to demonstrate that the decisions were not based on professional judgment.” Such a clear factual dispute cannot be resolved on summary judgment. The determination of whether professional judgment was in fact exercised requires a balancing of factors which can only be performed on a fully developed factual record. Wilder v. City of New York, 568 F.Supp. 1132, 1137 (E.D.N.Y.1983).

IMMUNITY

The Defendants next argue that despite this factual dispute, summary judgment should be granted because the Defendants, as employees of the State of Delaware, may claim the benefit of official immunity. The standard for official immunity was set forth by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Under that standard, immunity is available only to officials whose conduct conforms to a standard of “objective legal reasonableness.” Id. at 819, 102 S.Ct. at 2739. An official is protected by qualified immunity except in those instances where his conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2739.

The Plaintiffs argue that the Defendants are not entitled to immunity because they violated clearly established decisional and statutory law. Mere violation of a state statute that does not create a cause of action under section 1983, however, cannot be used to overcome qualified immunity. Davis v. Scherer, — U.S.-, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984). There has been no claim in this case that the Delaware Mental Patient’s Bill of Rights, 16 Del. C. § 5161, the statute Plaintiffs claim represents clearly established law, is the basis for their cause of action under section 1983. Therefore, the statute cannot be relied upon as clearly established law for the purposes of defeating qualified immunity.

Thus, the question facing this Court is whether decisional law creating a constitutional right to safe' conditions was clearly established at the time of Gann’s death. The Defendants claim that it was not because the Supreme Court’s acknowledgment of the right did not come until the Youngberg decision of 1982. However, a Supreme Court decision is not absolutely imperative before law may be considered “clearly established” under Harlow. In People of Three Mile Island v. Nuclear Reg. Com’rs, 747 F.2d 139 (3d Cir.1984), the Third Circuit addressed the issue of how “clearly established” law must be in order for it to defeat qualified immunity.

We adopt the second approach — requiring some but not precise factual correspondence and demanding that officials apply general, well developed legal principles. Such a formulation of the law better strikes the balance between the competing interests that the Supreme Court identified when it fashioned the contours of executive immunity. While we cannot expect executive officials to anticipate the evolution of constitutional law, neither can we be faithful to the purposes of immunity by permitting such officials one liability-free violation of a constitutional or statutory requirement.

Id. at 144-45.

Opinions from this district also suggest that the “general legal principles” referred to by the Third Circuit do not have to be Supreme Court opinions directly on point. This district has held that a ruling of the Third Circuit is enough for law to be considered “clearly established.” Dehorty v. New Castle County Council, 560 F.Supp. 889 (D.Del.1983). This district has also noted that the rulings of three Courts of Appeals (not including the Third Circuit) are sufficient for a legal principle to be considered well established. Masjid Muhammad-D.C.C. v. Keve, 479 F.Supp. 1311, 1321 (D.Del.1979).

At the time of Mr. Gann’s death, the Third Circuit had acknowledged that individuals involuntarily committed to mental hospitals have a right to a secure environment. Romeo v. Youngberg, 644 F.2d 147, 162-64 (3d Cir.1980). The Defendants question the conclusiveness of the opinion on the basis that the en banc majority opinion garnered only five votes with four judges joining in the opinion by concurrence. What the Defendants do not note, however, is that both the majority opinion and the concurrences acknowledge the right to safety — the only difference is in the standard applied to determine when the violation of that right infringes upon fourteenth amendment rights. 644 F.2d at 163; 644 F.2d at 177, Seitz, J. concurring.

If the Third Circuit had decided Romeo a month or two sooner, the principle that involuntary inmates in a state mental hospital have a constitutional right to safety would have been unquestionably established in this district. However, Romeo was decided on December 12, 1980, only seven days prior to John Gann’s suicide of December 19, 1980. It is questionable whether such short notice could have provided Defendants with adequate awareness of the law.

Although the Third Circuit decision alone may not have been enough to render the legal principle clearly established, Romeo was not the first case to find that individuals involuntarily confined in a mental hospital have a constitutional right to safety. Three circuits as well as a number of district courts had acknowledged such a right prior to Romeo. Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir.1978); Harper v. Cserr, 544 F.2d 1121, 1123 (1st Cir.1976); Spence v. Staras, 507 F.2d 554, 557 (7th Cir.1974); Evans v. Washington, 459 F.Supp. 483, 484 (D.C.D.C.1978); Welsch v. Likins, 373 F.Supp. 487, 502-03 (D.Mn.1974), aff'd, 525 F.2d 987 (8th Cir.1975); New York St. Ass’n for Retard. Child., Inc. v. Rockefeller, 357 F.Supp. 752, 764 (E.D.N.Y.1973). In contrast, Defendants have been unable to cite even one case denying the existence of such a right.

Further support that this right to safety was clearly established may be found in some of the eighth amendment prison cases. In Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Supreme Court noted that “deliberate indifference to serious medical needs of prisoners” violates the eighth amendment. Individuals who are involuntarily confined in a mental hospital certainly should have no less rights than a prisoner. New York St. Ass’n for Retard. Child., Inc. v. Rockefeller, 357 F.Supp. at 764. Indeed “[i]t would be anomalous to find that the right to a secure environment, which federal courts have often intervened to protect in the context of penal institutions, did not extend to facilities for the mentally retarded.” Romeo, 644 F.2d at 162.

Thus, in December of 1980, the right to a safe environment for those involuntarily committed to mental institutions had received wide acceptance by the courts. The right was a general, well developed legal principle that officials at a state mental hospital should have been applying daily. If they did not do so, they have forfeited the privilege of official immunity.

. LIABILITY OF EACH INDIVIDUAL DEFENDANT

Although the Defendants cannot claim the benefit of official immunity, they go on to argue that the individuals who had no involvement with John Gann’s treatment cannot be held personally liable for damages under 42 U.S.C. § 1983. Traditional concepts of respondeat superior do not apply to actions brought under section 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). An “affirmative link” between the injury and the Defendants’ conduct is essential to the showing of causation. Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976). In order to establish such an “affirmative link” the Third Circuit has required an examination of the extent to which the individual “participated in a pattern of violation by virtue of knowledge, acquiescence, support and encouragement.” Black v. Stephens, 662 F.2d 181, 189 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982).

For several of the Defendants in this case, the link between any alleged violations of John Gann’s constitutional rights and the individual’s activity is clear. Drs. Tonogbanua, Ausejo and Vergara all participated directly in formulating treatment decisions in the case. As noted earlier, whether such treatment decisions departed so substantially from professional judgment as to violate the Youngberg standard is an issue of fact and must be decided at trial. Those three individuals all had enough personal knowledge of John Gann’s case to expose them to potential liability under section 1983.

For the remaining Defendants, the link between the alleged violations of John Gann’s constitutional rights and the individuals’ activity is less certain. Patricia Schramm, Sheldon Schweidel, Robert Feeney, Anne Willard and Dr. Robert Buckley never saw John Gann alive. The Plaintiffs claim that the actions of the individuals in refusing to correct treatment decisions concerning Gann and their role in formulation of the hospital policy established enough of a causal connection to expose them to liability under section 1983. Indeed, supervisory personnel may expose themselves to liability by knowing and acquiescing in unconstitutional conduct by subordinates. Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.1976). However, such unconstitutional conduct, without actual knowledge of the specific wrong being committed, can only result in liability under section 1983 when there has been a “pattern or practice of constitutional violations.” Com. of Pa. v. Porter, 659 F.2d 306, 325 (3d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3509, 73 L.Ed.2d 1383 (1982). The Plaintiffs must demonstrate that the Defendants’ inaction occurred in the face of knowledge that the institution was failing to adequately protect the individual’s constitutional rights. See, Doe v. New York City Depart, of Social Services, 649 F.2d 134, 145 (2d Cir.1981), cert. denied, — U.S. -, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Showing that individual officials violated a person’s constitutional rights on an isolated occasion is not sufficient to raise an issue of fact as to whether adequate policies and protection were implemented. “Supervisors cannot automatically be held liable for a subordinate straying from the established path.” McClelland v. Facteau, 610 F.2d 693, 697 (10th Cir.1979).

A number of factors should be considered in determining whether a supervisor may be held liable without direct participation in the violation. These include the knowledge the supervisor has or should have over the situation, the degree of authority and control of the supervisor, the policies which relate to the conduct and, finally, the extent to which the supervisor has encouraged or acquiesced in the conduct. Santiago v. City of Philadelphia, 435 F.Supp. 136, 151 (E.D.Pa.1977).

An evaluation of these factors in regard to the Defendants Patricia Schramm, Sheldon Schweidel, Robert Feeney, Dr. Robert Buckley and Anne Willard leads the Court to conclude that only Dr. Buckley had enough knowledge and control of the situation at issue to bear potential liability for the alleged violation of Gann’s constitutional rights. As Medical Director of DSH, Dr. Buckley was in charge of all medical decisions made at the hospital. Such authority was more than nominal and Dr. Buckley actually reviewed decisions of the staff physicians regarding admissions and other matters. In John Gann’s situation, Dr. Buckley had reviewed the report of Gann’s December 12 admission and assignment to the Admissions Ward. In addition, Dr. Buckley was .aware of Gann’s unauthorized absence from DSH on December 16. With this knowledge and the authority possessed by the medical director of the hospital, Dr. Buckley certainly had enough involvement in the Gann incident to be subject to potential liability under section 1983.

In regard to the rest of the Defendants, Patricia Schramm, Sheldon Schweidel, Robert Feeney and Anne Willard, the Court grants summary judgment. Patricia Schramm, the Secretary of the Department of Health and Human Services at the time of the incident, is not even cited in Plaintiffs’ affidavit for lack of professional judgment. Sheldon Schweidel should also be excluded from liability. As Director of the Division of Mental Health for the State of Delaware, he was never aware of John Gann’s presence at DSH, had little, if any, supervisory authority over personnel at DSH and did not participate in the training of personnel at the DSH. Plaintiffs allege that he bears responsibility because of his failure to formulate and enforce adequate policies at DSH. Such allegations, in the absence of evidence of a pattern of constitutional violations at DSH are insufficient to impose liability on Schweidel who had no personal knowledge of the Gann incident.

The same is true of Robert Feeney, the Director of DSH. Although Feeney had some awareness of Gann’s unauthorized absence through the hospital’s routine reporting system, he did not have the authority to change the conditions of Gann’s confinement since all medical decisions were left to the medical director, Dr. Buckley. Like Sheldon Schweidel, Robert Feeney cannot be held responsible for any violation of one patient’s rights in the absence of a documented pattern or practice of such violations.

Finally, the Court grants summary judgment to Anne Willard, the Director of Nursing at DSH. Although she too was aware of John Gann’s situation through the hospital’s routine reporting system, she had no authority to alter the terms of Gann’s confinement. As head of nursing at the time, Anne Craig was in part responsible for the enforcement and creation of the policies regarding missing patients but, in the absence of any direct personal role in the search for Gann after he was reported missing or, in the absence of proof of a pattern of such deficiencies, she cannot be held responsible.

Thus, the Court grants summary judgment in favor of Defendants Patricia Schramm, Sheldon Schweidel, Robert Feeney and Anne Willard because of their lack of personal involvement in the Gann situation.

PLAINTIFFS’ INDIVIDUAL CLAIM

The final issue to be decided in this summary judgment motion is whether Plaintiffs have the right to obtain damages for the death of John Gann in their individual capacities. It is not contested that Plaintiffs have a right to damages for the death of their son as representatives of his estate. However, they also claim that their own constitutional rights were violated by his death. Some courts have recognized that a violation of a child’s civil rights leading to his death creates an independent cause of action in the parent for violation of the right to parenthood. Mattis v. Schnarr, 502 F.2d 588 (8th Cir.1974), on remand, 404 F.Supp. 643 (E.D.Mo.1975), rev'd, 547 F.2d 1007 (8th Cir.1976), vacated and remanded sub nom., Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977), reh’g denied, 433 U.S. 915, 97 S.Ct. 2990, 53 L.Ed.2d 1102 (1977); Bell v. City of Milwaukee, 536 F.Supp. 462, 467 (E.D.Wis.1982), aff'd in part, rev’d in part, 746 F.2d 1205 (7th Cir.1984); Smith v. Wickline, 396 F.Supp. 555, 565 (W.D.Okl.1975). However, the interpretation of the law of the Third Circuit leads this Court to conclude that such a right is not recognized in a situation involving a non-minor child.

In Denman v. Wertz, 372 F.2d 135 (3d Cir.), cert. denied, 389 U.S. 941, 88 S.Ct. 300, 19 L.Ed.2d 293 (1967), the Third Circuit upheld the dismissal of a complaint by a father charging interference with his parental relationship with his minor children on the grounds that the father had no constitutional right to parenthood. In reliance upon Denman, two Pennsylvania district courts have held that a parent may not maintain a civil rights action for the wrongful death of a child. Anderson v. Erwin, C.A. No. 76-2020, slip op. (E.D.Pa. Dec. 20, 1976); Strickland v. City of Easton, C.A. No. 75-93, slip op. (E.D.Pa. Oct. 27, 1976). On the other hand, one district court decision, relied upon extensively by Plaintiffs, has distinguished Denman and concluded that the killing of a child deprives the parents of a fundamental constitutional right for which parents may obtain redress. Jones v. McElroy, 429 F.Supp. 848 (E.D.Pa.1977).

However, Jones differs from both Den-man and the present situation. The Jones court specifically distinguishes Denman by stating that the Denman decision was based on the fact that the father had no legal right to the custody of his children in the first place. 429 F.Supp. at 853. He had abducted and unlawfully taken the children from their mother to whom legal custody had been awarded. In this'case, as in Denman, the parents had no legal right to custody of their child since John Gann was over the age of eighteen. Therefore, this Court must follow the reasoning of Den-man and find that where the parents had no legal right to the child’s companionship, interference with the relationship between parents and their offspring is not actionable under the Civil Rights Act.

For the foregoing reasons, Defendants’ motion for summary judgment is granted on Plaintiffs’ equal protection claim and Plaintiffs’ claim for relief in their individual capacity. Summary judgment is also granted in favor of Patricia Schramm, Sheldon Schweidel, Robert Feeney and Anne Willard on Plaintiffs’ due process claim. Summary judgment is denied Defendants Robert Buckley, M.D., Gabino Tonogbanua, M.D., Felix Vergara, M.D., and Auzcena Ausejo, M.D., on Plaintiffs’ due process claim.

      . In the context of a different factual setting, see the analysis in Davidson v. O’Lone, 752 F.2d 817 (3d Cir.1984), establishing standards for determining a substantive violation of the fourteenth amendment cognizable under section 1983.

      . The Defendants also argue that the fact that the Delaware State Hospital was accredited by the Joint Commission on Accreditation of Hospitals ("JCAH") is proof of constitutionally adequate care. Such accreditation might provide prima facie proof of adequacy but Plaintiffs’ affidavit stating that professional judgment was not exercised is sufficient to rebut such a showing. See, Woe v. Cuomo, 729 F.2d 96, 106 (2d Cir.), cert. denied, — U.S.-, 105 S.Ct. 339, 83 L.Ed.2d 274 (1984).

      . The Court has considered the objections to the affidavit filed by counsel for Dr. Vergara. However, those objections go merely to the sufficiency of Dr. Mechanick's observations and do not eliminate the issues of fact raised by the affidavit.

      . The opinion does not specifically state that the right to safety includes protection from harm to one’s self as well as harm from others. However, such a right is subsumed in the right to a "basically safe and humane living environment” established in Youngberg. See, Harper v. Cserr, 544 F.2d 1121 (1st Cir.1976).

      . Plaintiffs have not made an eighth amendment claim in this use.


author: MARQUEZ, District Judge.

text:
    Anita L. NEELEY, Marcus S. Martin and Carmen Orozco, individually and on behalf of all others similarly situated, Plaintiffs, v. CENTURY FINANCE COMPANY OF ARIZONA; Bonnie Brae’s Nursing Home, Inc.; Doctor’s Business Bureau, Arizona Corporations; First Interstate Bank, a federal banking association; Alan E. Maguire, Deputy Treasurer, State of Arizona, in his official capacity; Lydia Marie Hicks; Pete Rubi, Thomas Rallis, and Emojean Girard, Justices of the Peace; Pima County Justice Court, in their official capacities, on behalf of all other public officials similarly situated, Defendants.
    No. CIV 84-003 TUC ACM.
    United States District Court, D. Arizona, Tucson Division.
    April 19, 1985.

      Charles Pyle, William E. Morris, Southern Arizona Legal Aid, Tucson, Ariz., for plaintiffs.
    Stanley M. Hammerman, Phoenix, Ariz., for Century Finance.
    Michael D. Alfred, Pima County Attorney’s Office, Civ. Div., Tucson, Ariz., for Pima County Justice Court, defendants.
    Earl E. Weeks, Streich, Lang, Weeks & Cardón, Phoenix, Ariz., for defendant First Interstate Bank.
    Charles Sullivan, Tucson, Ariz., for defendant Bonnie Brae Nursing Home.
    Michael M. Neal, Tucson, Ariz., for defendant Doctor’s Business Bureau.
    Anthony B. Ching, Arizona Atty. General’s Office, Phoenix, Ariz., for defendant Alan E. Maguire.
   MARQUEZ, District Judge.

This class action involves a challenge to the Arizona post-judgment garnishment procedures, A.R.S. § 12-1571 et seq., as being violative of Article 6, clause 2 (the Supremacy clause) and the 14th amendment (due process clause) to the.United States Constitution.

This matter is before the court on cross motions for summary judgment.

I

BACKGROUND

Plaintiff Anita Neeley financed the purchase of an automobile with defendant Century Finance Company., Following a default in the repayment of the indebtedness, Century Finance filed suit in Pima County Justice Court and obtained a default judgment against Neeley. All attempts at voluntary payment of the debt failed and Century resorted to the garnishment of Neeley’s wages to seek satisfaction of its judgment.

Plaintiff Marcus Martin became indebted to individual defendant Lydia Marie Hicks. Ms. Hicks reduced the debt to judgment in the Pima County Justice Courts. In an effort to satisfy the judgment, Hicks caused a writ of garnishment to be served on First Interstate Bank. First Interstate withheld funds from Martin’s bank account under the writ.

Plaintiff Carmen Orozco had her wages attached under a writ of garnishment served upon her employer, the State of Arizona. As a result of the garnishment, wages were withheld from her pay. The writ was issued in order to attempt satisfaction of a judgment in favor of Doctors Business Bureau and against, among others, Steven and Carmen Orozco. The garnishment of plaintiff Orozco’s wages was improper because the Carmen Orozco who is the plaintiff herein is not the same Carmen Orozco who was the defendant in the underlying state court action.

As a result of these actions, plaintiffs filed suit against the judgment creditors, the garnishees and the justices of the peace who had granted the writs of garnishment herein involved. The complaint was framed as a class action for both plaintiffs and defendants and sought, among other things, a declaration that the Arizona post-judgment garnishment procedures as set forth in statutes was violative of the United States Constitution in several respects.

Following a hearing at which several of the defendants participated, this court, on April 25, 1984 certified this action as a class action as to both plaintiffs and defendants under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The plaintiffs class consists of the named plaintiffs as well as all persons who have or will have writs of garnishment issued against them by any justice of the peace or by any clerk of the Superior Court of the State of Arizona. The defendants class consists of the named defendants plus all clerks of the superior court of the State of Arizona and all justices of the peace in the State of Arizona.

On September 25, 1984, the plaintiffs filed a motion for summary judgment as to claims based on federal law, the present motion. On November 19, 1984, defendant Century Finance filed its opposition to the motion and in the same pleading filed its cross motion for summary judgment. No other defendant including those represented by the Arizona Attorney General’s office and the Pima County Attorney’s office filed any opposition to the plaintiffs motion for summary judgment. Under Rule 11(h) of this court’s Local Rules of Practice, the failure to file a responsive pleading to a motion is deemed to be a consent to that motion. On December 6, 1984 this court issued an order holding that all defendants in the class except Century Finance were deemed to have consented to the granting of plaintiff’s motion declaring the Arizona statutes unconstitutional. As the defaulting defendants included officials of the State of Arizona, holding that the statute is unconstitutional in this matter is appropriate. None of the defaulting parties have moved to set aside the order or to seek reconsideration.

As to defendant Century Finance, a determination on the merits is appropriate. On January 17, 1985, attorneys representing several clients who actively engage in garnishment practice sought leave to intervene as amicus curiae as to the constitutional questions involved herein. Due to the serious nature of the issues involved, this court granted the motion for leave to file an amicus brief. Their brief and the plaintiff’s response to it have been filed and considered by the court.

II

PRELIMINARY CONSIDERATIONS

Defendant Century Finance and the amicus brief have raised two issues which require determination prior to an examination of the constitutional validity of the state statutes. Those issues are whether or not this court should abstain from hearing the case and whether or not the intervening acts of the Arizona legislature adopting various changes in the garnishment procedure since the filing of this suit render this action moot.

Abstention This court has been requested to abstain from ruling on the merits of this case under the doctrine set forth in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Under that doctrine, the federal courts will withhold analysis of state law under the United States Constitution when a state court’s interpretation of state law would make an analysis under the Constitution unnecessary. Cases involving this type of abstention concern issues where state law is unresolved, unclear or ambiguous. None of these situations is present here.

The state law involved in this matter is statutory. None of the statutes involved contain language which is ambiguous or capable of differing interpretations. None of the parties has set forth any question of state law which would render constitutional analysis of this statutory scheme unnecessary. The amicus brief contends that merely by virtue of the fact that the statutes involved in this action were amended during the pendency of the suit, the newness itself should require abstention. This court disagrees.

Waiting to determine how the recently enacted statutes will be applied is not appropriate. The present challenge to the garnishment scheme is based on whether the statutes, on their face, meet constitutional requirements. The method of application of the statutes is irrelevant. In addition, there is no case or other authority cited in support of the amicus position that newness alone requires abstention. This court’s own research has failed to find any such holding.

The only conceivable analysis of these statutes under state law which could apply is the interpretation of the state constitution. The doctrine of abstention does not require a withholding of decision pending analysis by another court of constitutional questions particularly when the issues would be identical to those presented here. Brown v. Liberty Loan Cory, of Duval, 539 F.2d 1355, 1362 (5th Cir.1976). See also, Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515, 520 (1971).

Abstention under Pullman is not appropriate. The request for abstention is denied.

Is this action moot? Following the filing of this action, the Arizona legislature enacted into law several amendments to the post-judgment garnishment statutes. The defendants and amicus contend that those amendments render this action moot. Their contention is incorrect. A constitutional violation becomes moot when (1) the alleged violation has ceased and there is no reasonable expectation that it will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979), Finberg v. Sullivan, 658 F.2d 93, 97 (3d Cir.1980) [Finberg II].

The uncontroverted affidavits of Plaintiffs Neeley and Martin establish that both plaintiffs are still indebted to their judgment creditors and the judgments remain unsatisfied. It is to be anticipated that the plaintiffs will be subjected in the near future, if not the present, to garnishments of their wages and deposit accounts. Plaintiffs contend that the defects to which they raise objections were not cured by the legislative changes and their objections apply equally to the recently enacted statutes. It cannot be concluded that the constitutional violations alleged in this matter, if established, will not recur. As to these plaintiffs, the action cannot be considered moot.

As to plaintiff Orozco, since her allegations arose because of a mistake in identity, it is not evident that she will again be subjected to garnishment. The court will therefore concentrate its analysis on the objections as to plaintiffs Neeley, Martin and similar class members.

Ill

OBJECTIONS TO THE POST-JUDGMENT GARNISHMENT PROCEDURES

At the time this suit was filed, the garnishment procedure did not require that the judgment debtor be given any notification that a writ of garnishment had been served, that the garnishee was withholding wages or property or any other notification. See, former A.R.S. § 12-1574(C). After this class action suit was commenced, the Arizona garnishment statutes were amended.

It is the lack of notice that prompted the initiation of this suit. All parties agree, however, that the statutory scheme subject to this court’s analysis is the present existing procedures rather than the procedures set forth prior to the amendments. In their motion for summary judgment, plaintiffs renew their objections to the Arizona statutory scheme based on the system’s overall lack of notice.

Plaintiffs contend that since the present system fails to require service of the writ of garnishment, it is defective. A.R.S. § 12-1580 requires the garnishee to serve its answer to the writ upon the judgment debtor, but there is no requirement of service of the writ itself.

Plaintiffs second objection to the procedure is that the statutory notice of exemptions is not only misleading, it is erroneous. A.R.S. § 12-1579(C) requires that the judgment debtor be given notice “in substantially the following form:”

You are hereby notified that this court gave (name of creditor) a right to some of your property as described in the answer to the writ of garnishment____

Plaintiffs objections to this notice provision are twofold. First, the writ of garnishment is not an order of court but a pleading by an adversary party. As such, it is not correct that a court has given a right to the property at the time the notice is served.

Second, by notifying the judgment debtor that the court has already given a right to the property as described in the answer, the judgment debtor may not pursue his rights under various federal and state exemption statutes. This will have the effect of chilling the debtors assertion of his exemption rights.

Plaintiffs third objection to the statutory scheme is that the system provides no notice as to what procedures must be followed to challenge the garnishment. A.R.S. § 12-1579(C), the pertinent statute involved in this objection states:

... If you believe this order is improper or unlawful, that your property is exempt by law or that the answer of the garnishee is incorrect, you may request a hearing before this court pursuant to Arizona Revised Statutes § 12-1589. You must request the hearing no later than the twentieth day after you receive the answer of the garnishee.

Plaintiffs’ objection is that by referring to a statute by number rather than setting forth in detail its requirements, some debtors are precluded from being able to follow the mandatory procedures because they are not versed in reading and understanding statutes. The requirements of A.R.S. § 12-1589(A) are that the legal and/or factual disputes must be set forth in the written objection, the objection must specifically request a hearing and it must be accompanied by an affidavit. The statute also requires service of the objections on all parties involved.

The fourth objection is that the statutory notice of exemptions does not identify any particular exemption nor does it refer to the federal statutes which provide the exemptions. The applicable notice provided the debtor is found also in A.R.S. § 12-1579(C). That portion of the notice states in its entirety: “Notice: Federal and state laws provide that certain of your assets and earnings are exempt from garnishment.”

The fifth objection to the scheme is that the procedure does not provide a prompt post-seizure hearing. As the system now exists, the assets are seized immediately upon service of the writ upon the garnishee. The first official notice of the garnishment to the debtor is given in the garnishee’s service of the answer on the judgment debtor. The garnishee has 20 days from the date of receiving the writ to the date his answer must be filed. The debtor is then given 20 days in which to file his or her objections. A.R.S. § 12-1589(B) requires the hearing to be commenced within 14 days of the request but may be continued for cause on any terms the court deems appropriate. All parties to the garnishment must also be given notice of the hearing date at least 5 days prior to the hearing. Plaintiffs complain that this results in property being seized for an extensive period of time without judicial review.

Plaintiffs final objections concern the recently enacted provisions in the statute which allow a “continuing” garnishment of wages upon the service of a single writ, A.R.S. § 12-1590(A). The only notice given to the judgment debtor that his or her wages will be repeatedly taken appears in the third paragraph of the notice provision in A.R.S. § 12-1579(C) which states: “Also, if your earnings were garnished, the deductions will continue until the debt is paid.” The scheme does not require notice be given the debtor other than the original answer of the garnishee and quarterly reports by the garnishor/judgment creditor as to the amount withheld and its application to the indebtedness, A.R.S. § 12-1590(B). Although the statute provides a sanction against the creditor for failure to follow the statutory requirements, § 12-1590(E), no provision in the statutory scheme sets forth the manner and timeliness requirements for the objection to be filed nor is there any prompt hearing requirement other than for the initial objection.

All of these objections are based on two theories. The first is that the Arizona procedure violates the Supremacy clause of the United States Constitution in that federal statutes provide various exemptions for certain types of property including but not limited to wages, social security benefits, supplemental security income benefits, various pension benefits, etc. Because of the objections listed above, the Arizona scheme fails to adequately protect the federal statutory exemptions.

The second theory asserted is that the statutory scheme does not comply with the due process clause of the 14th amendment in that inadequate notice is given as to the exemptions and of the garnishment itself so that the procedure is calculated to preclude judgment debtors from seeking exemptions to which they are lawfully entitled. The plaintiffs also contend that the excessive time lapse before the exemptions are considered by the court denies the debtors of the opportunity to be heard within a reasonable period of time.

Defendant Century Finance’s cross motion contends that the Arizona statutes satisfy the requirements of the Constitution. They argue that because the statutes are valid, Century Finance’s activities in the garnishment of plaintiff Neeley’s wages were proper and as a result, the plaintiff must be denied relief in this action.

IV

THE APPLICABLE LAW

This court is bound to first consider any statutory argument prior to the interpretation of constitutional issues. Although both challenges here are based on constitutional grounds, the crux of the Supremacy clause argument is a comparison of state law with federal statutes. This issue should normally be resolved first. See, Hagans v. Lavine, 415 U.S. 528, 549, 94 S.Ct. 1872, 1385, 39 L.Ed.2d 577, 595 (1974). However, the substantive due process claim is based on both state and federal law. Consideration of the Supremacy clause issue will therefore not be dispositive of the entire case. For the reasons set forth in Finberg v. Sullivan, 634 F.2d 50, 56 (3d Cir.1980) [Finberg 7], consideration of the due process argument is more appropriate for resolution first.

Defendants contend that no due process is required at all in a post judgment garnishment situation. In Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924), the Supreme Court held that there was no requirement of notice and an opportunity to be heard on matters concerning post-judgment garnishment. This is based on the holding that because the debtor has already been given due process in the underlying court proceedings that resulted in the entry of judgment against him, no further due process requirements are present. The debtor has already had his day in court. This case has never been overruled by the Supreme Court and must still be considered the law.

At least two courts have held that the Endicott-Johnson case should no longer be considered applicable where some of the debtor’s property, including monetary assets, are exempt from attachment to satisfy debts. These exemption statutes have primarily come into existence after the decision in Endicott-Johnson was handed down. See, Deary v. Guardian Loan Co., Inc., 534 F.Supp. 1178, 1185 (S.D.N.Y.1982) and Finberg v. Sullivan, 634 F.2d 50, 56-57 (3d Cir.1980).

In addition to the exemption statutes, both the Deary court and the Finberg I court found persuasive the Supreme Court opinions in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W.T. Grant, Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). These cases all involved constitutional objections to various state laws permitting pre-judgment seizure of property. The basic rulings of these cases are that wages cannot be seized without notice and an opportunity to be heard prior to their seizure as security for a claim not yet reduced to judgment. Other assets and property can be seized prior to a hearing provided the debtor is given immediate notice of the action and the opportunity to have the matter litigated in court very promptly after the seizure occurred. These safeguards were held necessary in order to protect the debtors interest in the continued use of his property.

This court accepts the conclusions of the Deary and Finberg I courts that these pre-judgment cases can be interpreted as an indication of a change in the law since Endicott-Johnson. They may cast doubt on the continuing validity of the holding. None of those cases contained any citation to Endicott-Johnson nor is there reference to its holding. This court, however, is not willing to ignore the holding in that case due to the pre-judgment holdings. If Endicott-Johnson is to be considered no longer the law, it is the Supreme Court that must declare such a result.

There can be no doubt that the various federal and state exemption statutes are designed to protect certain assets against creditor’s claims. These statutes create a protected property interest which requires a certain amount of due process prior to its deprivation. This court considers the Endicott-Johnson holding as not being applicable in those situations where a specific statute, either state or federal, precludes certain assets from being subjected to liability for a person’s debts. In any situation where no exemption could possibly apply, the holding of Endicott-Johnson must be applied and the procedure upheld under due process analysis as no further due process is required.

In accordance with this conclusion, it must be further concluded that the Arizona procedures are in compliance with due process as they apply to business debts and the assets of a business. Although none of the named plaintiffs incurred a debt in the operation of a business, this court certified the plaintiffs class as all persons presently and in the future subject to garnishment proceedings. No party has cited any exemption under state or federal law that applies to the monetary assets of a business entity. Accordingly, the Arizona procedures as they now exist satisfy the holding in Endicott-Johnson and are not constitutionally defective with regard to these business assets.

As to an individual debtor, various state and federal statutes mandate that certain assets are exempt from debt collection activities. As to individual debtors and these types of assets, the Endicott-Johnson holding is inapplicable and it is necessary to determine whether the Arizona procedures comply with due process requirements.

This court is in agreement with the Third Circuit in Finberg I and the District Court in Deary that the proper test in determining if due process is satisfied is a balancing of the competing interests to the property. See, Brown v. Liberty Loan Corp., 539 F.2d 1355, 1365 (5th Cir.1976) cert. denied, 430 U.S. 949, 97 S.Ct. 1588, 51 L.Ed.2d 797 (1977) and Finberg I, supra, 634 F.2d at 58. .

Every pleading in this matter is replete with emotional arguments that attempt to establish that the diligent innocent creditor’s interests outweigh the interests of the defaulting debtor, or that the assets necessary for the basics of food, clothing and shelter for the poor helpless debtor make the debtor’s interests superior to that of the ruthless creditor. This court is fully aware of the consequences of this ruling and has considered every argument on each side as a factor in the balancing of the interests in this case.

It is important to note that the garnishment scenario is not merely an action between the creditor and debtor. These proceedings also involve a third party who is suddenly thrust into the middle of the dispute and may be subject to substantial penalties. See, A.R.S. § 12-1583 (allows judgment against defaulting garnishee for full amount of judgment debt). These extensive penalties can be imposed when in fact the only relationship the garnishee has to the action is that they are the employer of the debtor or the debtor is one of a multitude of depositors with their financial institution. For this reason, it is also appropriate to include the interests of the garnishee in the balancing process.

The judgment creditor must be considered to have a substantial interest in the property involved in a garnishment action. The debtor, either by voluntary action or tortious conduct, has become indebted to the creditor. The creditor, at the post-judgment stage, has already pursued the matter through the judicial system all the way to the point of entry of judgment. The debtor is presumably unwilling to voluntarily pay the debt which a court of law has ruled is actually owed. The judgment creditor’s interest in obtaining that to which a court has already indicated he has a right to without substantial delays and excessive costs demonstrates that the debtors due process rights at this stage may be minimal. As ruled herein above, absent a specific statute exempting the assets from seizure, the debtors interest may be almost non-existent.

The debtor’s interest where a statute provides an exemption must also be considered significant. It is presumed that these statutes are enacted in the interest of sound public policy. These statutes completely destroy any interest of the creditor in the particular exempted asset.

The garnishee’s interest in the asset itself is nonexistent. This third party, however, does have an interest in resolving the dispute to which he has become a central participant without being forced to incur substantial expenses or spend excessive amounts of time.

It is with these competing interests in mind that the Arizona statutory procedure is examined to determine “ ‘the probable value, if any, of additional or substitute procedural safeguards’ and the ‘fiscal and administrative burdens that the additional or substitute procedural requirements would entail.’ ” Finberg I, supra, 634 F.2d at 58 quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). At the minimum, however, “the available procedures must afford the debtor adequate protection against erroneous or arbitrary seizures.” Id.

V

MERITS OF PLAINTIFF’S MOTION

Failure to Serve the Writ

The Supreme Court has held that the required notice to be given when substantial rights are involved, is that which is “reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).

As stated above, the only official notice received by the debtor of the garnishment action is when the garnishee serves the answer to the writ. Defendants argue that service of the writ is not required. They contend that since the judgment debtor is aware of the debt, and was served in the underlying action, the service of the writ would add little. The judgment debtor can be considered to know who is attacking his assets and the reason for the attack.

This argument has some merit. It is the basic argument resulting from Endicott-Johnson, supra. However, if the assets are potentially exempt from seizure, the underlying judgment is of little concern. The issue at this stage is not whether the debt is owed, but whether the creditor is able to seek satisfaction of the indebtedness from this particular asset. The fact of service in the underlying claim is of little consequence in the garnishment setting. Although far better than the lack of notice provisions of the previous statute, the current notice is still constitutionally defective. The protections found in some of the exemption provisions for assets that could be kept in bank accounts (social security benefits 42 U.S.C. § 407, supplemental security income benefits 42 U.S.C. § 1383, veteran benefits 38 U.S.C. § 3101, and provisions in A.R.S. § 33-1126(7) to name a few) can be ascertained from the moment the account is seized. Yet, at least 20 days may pass before the judgment debtor receives notice of who is freezing the account and for what reason. Service of the writ itself will provide the necessary information for the debtor to be able to immediately assert his exemption rights. Service of the writ is required in order for the debtor to be adequately apprised of the interests at stake. In situations where the exemptions can be determined immediately upon service of the writ (rather than instances where the answer determines the existence of exemption matters such as wages), the debtor’s time period for asserting his objections could begin to run immediately. This would bring the matter to the court at a much quicker pace. The additional requirement that the writ be served on the judgment debtor at the time it is served on the garnishee or shortly thereafter imposes a small burden while increasing the benefits to all parties.

Wages are an asset subject to stronger exemption protection. This is indicated by the federal exemption statute 15 U.S.C. § 1673 and the identical state provision, A.R.S. § 33-1131, which provide that rather than a minimal amount of the asset being protected, only a minimal amount of the wage is subject to garnishment. The added protection given to wages is also evident in the pre-judgment attachment case Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). See also, Usery v. First National Bank of Arizona, 586 F.2d 107 (9th Cir.1978); and Brown v. Liberty Loan Corp. of Duval, 392 F.Supp. 1023 (D.Fla.1974), reversed on other grounds, 539 F.2d 1355 (5th Cir.1976). Under the existing state system, several pay periods may elapse before the judgment debtor receives notice of the garnishment other than a reduction in the wages he receives. The number of pay periods passing prior to receipt of notice differs depending on whether the employee is paid weekly, bi-monthly or monthly. Although the debtor is “notified” that some action is occurring with regard to his earnings due to the reduced amount received, wages are entitled to greater protection than other assets and this present notice is insufficient. This also reduces the delay in resolving the problems presented by the allegations pertaining to plaintiff Orozco. Service of the writ would give immediate notice to this type of “debtor” that an improper attack on her wages is occurring and provides sufficient information for her to be able to promptly seek release of the assets. Accordingly, the writ must also be served upon the judgment debtor at the time it is served on the garnishee or very shortly thereafter.

The court makes no ruling as to whether the judgment creditor or the garnishee should be responsible for serving the writ on the judgment debtor and what manner of service is sufficient. The court defers to the sound collective wisdom of the state legislature to decide these issues so as to accomplish the purposes of due process with minimal increased burdens to the three parties involved in a garnishment. The court will not go beyond the holding that service of the writ itself is required.

Misleading notice

Plaintiffs contend that the notice provision in A.R.S. § 12-1579(C) stating that a court has already held the garnishor is entitled to the property is misleading and invalid. This court disagrees. Although the notice in the statute is technically incorrect and poorly worded, it is not constitutionally defective. Accompanying the statement that a creditor has already been given a “right” to the debtor’s property is a further notice that some property is exempt and further notice that there is a procedure to protect this exemption. These subsequent statements cure the effect, if any, of the original misstatement. Additionally, because this is a post-judgment matter, it is true that a court has already held that a judgment creditor is in fact entitled to some property of the judgment debtor. The misstatement is not so infirm as to violate the constitution of the United States.

Vagueness in the Notice Concerning Exemptions

A.R.S. § 12~1579(C), second paragraph, states in its entirety: “Note: Federal and state laws provide that certain of your assets and earnings are exempt from garnishment.” The defendants contend that this notice coupled with the sheet of instructions given to the garnishee concerning the calculation of the wage garnishment amount is sufficient. That position is not correct. Nothing in the record indicates that the judgment debtor ever receives the garnishee’s set of instructions nor does the statute even require that the garnishee receive this instruction sheet. Notice “reasonably calculated to afford an opportunity to present objections” requires that whenever wages are the subject of the garnishment, the debtor must receive notice of the exemptions. Under these circumstances, there is but one federal statutory exemption provision, 15 U.S.C. § 1673, and the identical state provision, A.R.S. § 33-1131. This provision sets forth a formula for alternative withholdings. Only the smaller of these calculations is permitted to be withheld. At a minimum, the debtor must be provided the statutory citation to the exemption statute as well as the alternative formulas. It is for the legislature to determine if the statute should be quoted verbatim or whether a paraphrase will provide adequate notice of the statute’s contents. Because the debtor will not be able to determine which alternative was used by his employer until the answer is filed, it is also necessary that the debtor be served with the answer.

Several federal and state statutory exemptions could possibly apply to funds held in bank accounts and other similar deposit accounts. A detailed listing of these exemptions would result in the notice being very voluminous. The notice would be so lengthy that it is doubtful the debtor would or could read it and the cost would increase significantly, especially if the notice were in both English and Spanish. To require every possible exemption to be listed on the notice would increase the burden without adding any benefit to the system. See, Finberg v. Sullivan, 634 F.2d at 82-84 (Aldisert, J., dissenting) and Deary, supra, 534 F.Supp. at 1182 n. 6. Due process does not require that all exemption statutes be identified and set forth in detail. What statutory provisions should be set forth either by number alone or in detail is a matter for the legislature to determine. Those exemptions that occur frequently should be included in the notice. As the Third Circuit stated in Finberg I:

Knowledge of these exemptions is not widespread, and a judgment debtor may not be able to consult a lawyer before the freeze on a bank account begins to cause serious hardships. These problems are probably most acute for those judgment debtors who have few immediate sources of necessary funds other than money held in a bank account. Notice of these matters can prevent serious, undue hardship for the judgment debtor whose lack of information otherwise would cause delay or neglect in filing a claim of objection.

534 F.2d at 62.

This court is not deciding, other than for wages, what particular exemptions must be identified. It is sufficient to state that a notice form that fails to identify any exemption, including one seemingly possible in every bank account situation, see A.R.S. § 33-1126(7), is not reasonably calculated to give debtors an opportunity to present their objections. The present statutory notice does exactly that, it fails to identify any possible exemption. For that reason, it violates the due process clause of the 14th amendment.

Notice of the Procedures for Obtaining Judicial Review

Plaintiffs object to the wording of the statutory notice in A.R.S. § 12-1579(C) as to the procedures necessary to obtain judicial review of the claimed exemptions. The notice does not set forth in detail the necessary procedures to follow but refers to A.R.S. § 12-1589. That statute contains the requirements necessary to obtain a hearing.

In Deary, the New York post-judgment garnishment scheme was struck down because it failed to provide any notice of the exemptions, the procedures for asserting the exemptions and no notice was given of the garnishment. That court required that the procedures to obtain judicial review be set forth in the notice required with the writ. In Finberg I, the court noted that “notice that informs the debtor ... of the procedure for claiming these exemptions would provide substantial protection to the debtor’s interest in having funds available for basic necessities.” 634 F.2d at 62.

Neither Finberg I nor Deary involved a notice provision that referred to another statute containing the detailed procedural requirements. The systems under scrutiny provided no notice whatsoever.

This court has already held that the constitution requires setting forth in detail the federal statutory exemption alternative tests for wages in the notice of garnishment. This is based on the previous discussion that wages should be given added protection. The pleadings ■ also indicate that the garnishment of wages is one of the more common, most successful methods of obtaining satisfaction of a judgment. This is particularly true since under the Arizona scheme, a single writ of garnishment acts as a continuing garnishment on all future wages (subject to only a few limitations) from the employer until such time as the entire judgment is satisfied. Because of the substantial effects of the writ on wages, due process requires that the procedures to seek judicial review of the garnishment be set forth in detail.

The same is true with regard to deposit accounts. Certain exempt assets such as social security benefits are frequently kept in bank accounts. In fact, the federal government encourages recipients to participate in direct deposit programs to protect their benefits. Although this court has held that not every conceivable exemption provision must be included in a garnishment notice, those that must be included are the ones applicable to a significant number of people. Some of the exemption provisions apply to very large numbers of people in Arizona. Significant impact will result when the recipient of this type of exempt benefits has them frozen in a bank.

The procedural requirements to obtain a post seizure review of exemption claims are not substantial. The debtor need only state their claim of exemption, a specific request for a hearing and an accompanying affidavit. Very little burden would result from the slight increase in the notice form, yet the debtor would gain substantial benefit from the' ability to quickly request a judicial review of claims of exemption. In addition, the creditor also benefits from this requirement. If the debtor is provided the necessary information to seek review of the exemptions, the claim can be filed without the delays caused by attempting to engage in legal research. Exemption claims can be filed more quickly, resulting in a decision by the court at a speedier pace than the present system allows.

The added burden of increasing the notice provision is far outweighed by the benefit to the debtor in being able to seek quick judicial review of an improper garnishment. Because the Arizona statutes do not provide this protection, they are in violation of the due process clause of the 14th amendment.

Prompt post-seizure judicial review

Due process requires that where exempt assets are seized under a garnishment proceeding, the matter must be heard before a court within a meaningful time. Finberg I, supra, 634 F.2d at 59. Under the existing Arizona scheme as was discussed at oral argument on these motions, once the garnishee receives the writ, 20 days are permitted before the answer is required. A.R.S. § 12-1589(A) then allows the debtor 20 days in which to file his objections. A.R.S. § 12-1589(B) requires that the hearing on the objections must be commenced within 14 days of the request for hearing. The court, however, is given discretion to continue the hearing for “cause” on “any terms the court deems appropriate.” A.R.S. § 12-1589(C) requires the party requesting a hearing to serve notice on all interested parties of the place and time scheduled not less than five days prior to the hearing.

§ 12-1578(E) requires the return of the debtors property if after 90 days from the date of the garnishee’s answer, no judgment is entered ordering the release of these funds to the garnishor. This 90 day period is specifically excluded whenever any party files an objection to the answer. It also does not apply if the answer involves only wages of the judgment debtor.

Plaintiffs raise several objections to these time period provisions. They contend that they are excessive and that due to the operations of the justice courts, the notice requirements cannot be met.

With regard to the conditions of the operation of the justice courts, the pleadings in this matter indicate very serious problems. Affidavits indicate that files in garnishment matters are not maintained in any orderly fashion, pleadings are missing and that hearings are often set in such a manner that the five day notice provision is difficult to meet. These problems raise significant questions of the validity of the state court’s activities. This court’s review is limited to a challenge of the statutory scheme as it stands on its face rather than its actual application. These issues are more appropriately left to the review and consideration of the state legislature and state courts.

No party has cited a case holding that a specific time period from the attachment of the garnishment to a decision by the court is valid. Compliance with the previous holdings in this order will shorten the time periods necessary to obtain judicial review, i.e. if a bank account contains proceeds such as pension benefits protectable under 29 U.S.C. § 1056(d) and 45 U.S.C. § 231m, the debtor would be able to assert his claim immediately upon receipt of the writ. This result occurs because it is doubtful that the financial institution will have records indicating where the deposit source came from, and therefore, no matter what the answer states, the debtor will be the sole protector of the exemption rights. As to other assets, the debtor would need to wait for the answer of the garnishee to determine if the exemption was correctly applied.

In Finberg I, supra, the state procedure allowed the creditor to wait 15 days before filing its response to the claimed exemption, discovery procedures could also have substantially delayed the resolution of the matter for months. The procedure challenged in Deary did not specify time limitations.

Plaintiffs cite the case of Stypmann v. City and County of San Francisco, 557 F.2d 1338 (9th Cir.1977) holding that a five day period between seizure and hearing is excessive where the debtor has a substantial interest in the continued possession of the property, an automobile. Although plaintiffs concede that 5 days may not be a sufficient amount of time, they do not suggest an alternative period. This court will not state a maximum period of time that is constitutionally sufficient, but will consider only whether the present time periods provide adequate protection under the balancing test.

In making this determination, the interests of the third party garnishee must be given more consideration. At present, they receive 20 days in which to answer the writ. It is obvious that they must be given some time to check records, make calculations, etc. It was also pointed out at oral arguments that many out of state corporations transacting business in Arizona use a private in-state service to act as their agent for service of process. This can result in delays in forwarding the writ to the actual employees of the garnishee responsible for making the determinations required to enforce a writ. In addition, since this forwarding activity is often by the use of the United States mails, the receipt of the writ is further delayed for a short period of time.

Some reasonable time is necessary between the time the garnishee receives the writ and the time its answer is filed. 20 days, however, is excessive. Where wages are garnished, three weekly pay periods could elapse prior to the debtor being advised that only the minimum amount permitted under the statutes has in fact been withheld from the first pay period under the writ. This coupled with a possible 14 day wait for a hearing leads to a delay of over one month, even if the debtor immediately requests a hearing. This involves multiple pay periods for both the weekly earner and the bi-monthly earner.

As to other assets, the period of time permitted to answer is also excessive. Banks presumably are aware of the state statutory exemptions under A.R.S. § 33-1126(7) for an account and can quickly determine its application. The holder of funds will probably not be aware that the funds deposited may be social security benefits or other protected assets. There is also less effort entailed in examining account records to determine the existence of an indebtedness. Because the procedure provides for excessive delay by the garnishee, it fails to comport with the requirements of the 14th amendment.

Under the present scheme, the debtor is given 20 days to file an objection tothe garnishee’s answer. Since the debtor is at liberty to file his assertion of exemption rights at anytime during that 20 day period, any delay in access to exempt funds during this period is in effect a voluntary denial by the debtor’s own inactivity. There is no challenge to this time period and the court need not address its validity.

As the present system exists, the hearing must be commenced between 5 days after the request (the necessary notice period A.R.S. § 12-1589(C)) and the 14th day after the request. This particular period of time is adequate to allow all parties to receive notice and prepare for the hearing and to allow the courts some control over their calenders. This provision is not constitutionally defective.

A different conclusion is required in the examination of A.R.S. § 12-1589(B) allowing the court to continue the hearing for “cause” on any terms the court considers appropriate. In such an instance, the 90 day limit of A.R.S. § 12-1578(E) is inapplicable. There is no definition of “cause” provided in the statute and the courts could conceivably put off determination of the exemption question for an indefinite period. This provision could add substantial time to the already potentially lengthy process, and it must be struck down. The courts must be given some discretion in extending the resolution of the exemption hearing but the exclusion from the 90 day maximum period indicates clear potential for significant delay in the process. This delay would adversely affect the rights of both debtor and creditor and is invalid. This court makes no ruling whether the 90 day maximum time period, if applied to this provision, would or would not meet the requirements of due process.

Plaintiffs challenge the 90 day period in A.R.S. § 12-1578 as being “plainly untenable.” This court disagrees. That provision allows the release of funds under $200.00 to the judgment debtor when the garnishor fails to obtain a judgment ordering the release of the funds. This period applies only when no objection to the garnishee’s answer has been filed. Under the circumstances the judgment debtor can be considered to have no exemption rights or to have waived any claim to exemptions he may have had. This provision acts more as a punishment to the dilatory creditor than a protection of the judgment debtor. Because no exemptions apply in such a situation, the statute comes under the scrutiny of Endicott-Johnson. Accordingly, this provision does not violate the constitutional provisions.

Plaintiffs request this court to apply the doctrine of Stypmann, supra, that the timeliness of the hearing should be determined from the start of the procedure rather than from the time the party has requested the hearing. The rulings in this case regarding the time delays involved if considered as a whole indicate that due process requires a shorter overall time period than that provided at this time. This court is unwilling to examine the system to set a maximum time period due to the significant period of time given the debtor to seek his exemptions. It is for the legislature, not the courts, to decide what if any maximum time period should be permitted. It is also apparent that the shortening of the time frame will benefit not only the debtor but also the creditor. Access to exempt funds will be possible in a shorter time period and the creditors access to nonexempt funds will be possible at a quicker pace.

Continuing wage garnishment

After the filing of this suit, the state enacted a significant change in the procedures concerning the garnishment of wages. Plaintiff Neeley’s objections are based on wage garnishment activities and since she is still subject to an unsatisfied judgment against her and her judgment creditor has actively pursued the defense of the statutes in this case, it appears likely that she will have her wages subject to garnishment in the future and will be subjected to the provisions of this statute.

Plaintiffs do not claim that the concept of a continuing wage garnishment provision is a violation in and of itself. Rather, the attack is based on the same lack of notice and opportunity to be heard in a meaningful time arguments that were made against the other statutory provisions. The rulings above should resolve some of the problems with the continuing wage garnishment scheme, particularly the notice requirements, the service requirement and the shortened time frame requirement.

Plaintiffs allege other defects in the continuing wage garnishment statute. Following the initial attachment of the writ, the only other notice the debtor receives as to the computation of the wage exemption is the quarterly report required under A.R.S. § 12-1590(B). The report, filed by the garnishor, must include a statement of the payments applied to the judgment and the balance due. It does not indicate each successive pay period’s garnishment withholdings nor under which of the alternative formulas the amount withheld was obtained and most importantly, the garnishment statutes contain no provision for the debtor to seek judicial review of an incorrect garnishment for a particular pay period. There is also no procedure set forth in the statutes for making an objection to the quarterly report, only the initial attack on the writ.

These deficiencies invalidate this provision. Because the interest in wages is so significant, greater protection must be afforded the exempt property. A fluctuation in wages could result in the need to apply the different formula in 15 U.S.C. § 1673. At the minimum, the debtor must be informed in each pay period the amount withheld under the continuing writ and which alternative was used in the determination of this amount. The garnishee will already have made the calculations in this regard and little increased cost will be involved.

In addition, the requirements of due process resulting from the strong statutory protections given to wages necessitate an opportunity to raise an objection to the incorrect application of the exemption statute “at a meaningful time and in a meaningful manner.” Stypmann, supra, at 1344 quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32 (1976). The statute provides no such opportunity, and cannot survive constitutional scrutiny.

SUPREMACY CLAUSE

Plaintiffs contend that in addition to violations of due process, the Arizona post-judgment statutory scheme allows assets exempt under federal law to be seized and either withheld for a substantial period of time or to be used to bypass the exemption statutes altogether.

This court finds the analysis of both the Finberg I and Deary courts persuasive on this point. The test to determine a violation of the Supremacy clause is found in Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). The state law is invalid if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id., at 67, 61 S.Ct. at 404, 85 L.Ed. at 587.

The objective of exempting social security benefits is the “protection of its beneficiaries from some of the hardships of existence.” United States v. Silk, 331 U.S. 704, 711, 67 S.Ct. 1463, 1467, 91 L.Ed. 1757, 1766 (1947). The statute protecting wages, 15 U.S.C. § 1673 was enacted in order to protect the consumer from bankruptcy rather than as a statute to protect creditors rights. It was designed to allow the debtor to have a means of continued support for himself and his family. See, 15 U.S.C. § 1671 and Long Island Trust Co. v. United States Postal Service, 647 F.2d 336, 339-340 (2d Cir.1981). Similar objectives can be found in the legislative histories of other federal exemption statutes.

The state post-judgment garnishment scheme permits excessive interference with these Congressional objectives. The system allows a long term denial of the debtor’s access to benefits and assets to which the creditor has been denied all legal right by Congress. The statutes do not inform the debtor that the assets under garnishment may be exempt from debt collection activities or even that the assets have been seized until possibly 20 days later. The debtor is further denied a review of the garnishment action at a meaningful time in order to prevent the problems that Congress sought to eliminate by enacting the asset exemption statutes. For these reasons, the Arizona garnishment statutes discussed previously in this order violate Article 6, clause 2 (the Supremacy clause) of the United States Constitution.

VI

CONCLUSION

The Arizona post-judgment garnishment scheme, A.R.S. § 12-1571 et seq violates the Supremacy Clause of the United States Constitution as well as the due process clause of the 14th amendment as it fails to protect assets that have been declared exempt from debt collection activities.

Due to the substantial impact on debt collection activities in Arizona that this holding will have, this court will reiterate that this holding is limited in application to the situation where the debtors assets are protected by some federal or state exemption statute. Nothing in this order should be considered as providing protection to non-exempt assets. The state statutory penalty imposed upon the non-prevailing party to the objection proceedings (A.R.S. § 12-1589(D)) should serve to dissuade those debtors seeking to expand this ruling beyond its stated limits.

IT IS ORDERED that plaintiffs’ motion for partial summary judgment as to the constitutionality of the Arizona post-judgment garnishment procedures is granted in part and denied in part as set forth herein.

IT IS FURTHER ORDERED that defendant Century Finance Company’s cross motion for summary judgment is denied.

IT IS FURTHER ORDERED that counsel for the plaintiffs submit an order for the court’s consideration that is consistent with this opinion on or before April 30, 1985.

      . Defendant Hicks has never been served in this action.

      . Defendants First Interstate Bank, Alan E. McGuire and Doctors Business Bureau have.resolved the allegations against them with regard to the individual named plaintiffs and have been dismissed from this action.