UNITED STATES v. MORTON
Legal provision: 42 U.S.C. 659
ORAL ARGUMENT OF MICHAEL W. MC CONNELL, ESQ., ON BEHALF OF THE PETITIONER
Chief Justice Warren E. Burger: We will hear arguments next in United States against Morton.
Mr. McConnell, you may proceed whenever you are ready.
Michael W. Mc Connell: Thank you, Mr. Chief Justice, and may it please the Court.
The issue in this case is whether the United States in its capacity as employer and garnishee is required to reimburse an employee for sums deducted from his paycheck in compliance with the facially valid state court writ of garnishment enforcing a judgment for alimony and child support.
The state court subsequently was found not to have had personal jurisdiction over the employee respondent here in the underlying divorce proceeding.
The legal framework under which this case arises is a federal garnishment statute, 42 USC 659, which waives federal sovereign immunity and subjects federal agencies to suit in the capacity as garnishee to enforce alimony and child support in like manner and to the same extent as any private garnishee and which expressly immunizes the United States from liability for honoring any legal process regular on its face.
The facts of this case are quite simple when viewed from the perspective of a federal disbursing officer whose only responsibility is to ensure that the garnishment writ is regular on its face.
In August, 1975, respondent's wife obtained a divorce, including alimony and child support, pursuant to a default judgment in Alabama state court.
Over a year later, in December, 1975, the Air Force Finance Office at Elmundorf Air Base in Alaska was served a writ of garnishment to collect arrearages in Colonel Morton's obligations under the divorce decree.
Unidentified Justice: You left out that he was served on the case itself from Alabama by mail.
Michael W. Mc Connell: That's correct, Your Honor.
The Air Force Finance Office received two documents.
It received a writ of garnishment and it received a copy of the underlying judgment of divorce issued by the Alabama state court.
The disbursing officer attached... assigned to the case applied the usual procedures in processing it, examining the document to make sure that it was one that qualified under the statute.
He looked first to see if it was issued by a court of competent jurisdiction.
In this case, the writ was issued by the Tenth Judicial Circuit Court of the state of Alabama, which is a court of general jurisdiction, and unquestionably is a court competent to issue a writ of garnishment.
He checked second to see if the writ was to enforce an order for child support or alimony.
Since the federal garnishment statute does not permit garnishment for other purposes, such as rent or commercial loans or the like, it is necessary to make sure that it is for child support or alimony.
In this case, the face of the writ revealed that the sums were being sought for that purpose.
Third, he checked to see if the writ was in the proper form, and as the trial court found as a fact, the writ of garnishment was in the proper form, the usual form used by the state of Alabama for writs of garnishment.
And finally, the officer examined the writ to see if there were any irregularities on the face of the writ which would suggest invalidity under state or federal law.
Now, I mentioned that there were two documents served on the Air Force.
The other document was a copy of the judgment of divorce.
Now, in this instance that document was not necessary for the processing of the writ.
Under the regulations of the Office of Personnel Management which implement this statute, it is necessary to file a copy of the underlying decree only when the writ itself does not make plain whether it was for child support and alimony alone, which is not uncommon, since some writs of garnishment do not specify the nature of the underlying obligation.
In this case, as I have said, the writ itself indicated that it was for child support or alimony.
Thus the second document was not necessary.
Nonetheless, it is worth noting that a copy of the judgment of divorce was also regular on its face.
There are no irregularities apparent on the face of the document that would suggest invalidity, and in the first line of the judgment of divorce, it states that respondent was duly served and failed to appear in the divorce proceeding.
Upon receiving the writ, the finance office promptly notified Colonel Morton, who then sought legal advice.
Upon the advice of counsel, Colonel Morton protested the garnishment to the finance office on several grounds.
First, he claimed that he had in fact been satisfying on a regular monthly basis his obligations for divorce and alimony.
Second, he claimed that he was neither domiciled in nor a resident of Alabama.
And third, he claimed that he had not been properly served in the divorce proceeding.
Since none of these matters went to the question of the regularity of the writ on its face, the disbursing officer answered the writ and subsequently deducted the sums owing to Mrs. Morton and paid them over to the registry of the Alabama court.
Colonel Morton did not then nor has he at any time since challenged the state court judgment in the Alabama courts.
This is in spite of the fact that the notice which was provided him by the Air Force expressly informed him that he might have defenses to the underlying action, advised him to seek legal counsel, and informed him that the United States would not be asserting his defenses for him in the garnishment action.
In fact, Colonel Morton did seek advice of counsel from not one but two attorneys, and on their advice he chose not to challenge the underlying action.
The position of the government on these facts is straightforward.
The garnishment writ was regular on its face.
Colonel Morton's arguments, whether he had paid his obligations, whether the court's recital that he had been duly served was accurate, and whether he had had sufficient contacts with Alabama to justify jurisdiction were beyond the ken of disbursing officers and beyond their powers and responsibilities under the statute and implementing regulations.
The Air Force was required in like manner and to the same extent, no more, no less than any private garnishee to comply with the state court legal process.
Now, the facts and legal principles applicable to this case when viewed from respondent's position, that is, looking to see whether there was in fact personal jurisdiction over Colonel Morton in that underlying divorce proceeding, are considerably more complicated, and I will leave those facts for opposing counsel to develop.
Suffice it to say that the courts below found it necessary to determine and to rely upon the following facts among others.
They looked at where Colonel Morton voted.
They looked at where he paid taxes and why.
They looked at where he registered his automobile, why he used his moving allowance to send his family to Alabama, what his subjective intentions were when he moved to Alaska, and the like.
Just a recital of some of these facts should indicate that these are not the facts which are within the ordinary purview of the disbursing officer paying out federal salaries, but even after the facts had been established by the trial court below, the able judges of the federal circuit were not able to agree on the legal conclusions to be given those facts.
They in fact split on a two to one vote on the question of whether the Alabama divorce court did have jurisdiction over Colonel Morton, but of course the majority on the panel did conclude that the Alabama court had erred on the question of its own jurisdiction, and that the Air Force should have refused to honor the Alabama writ.
This case is thus a perfect illustration of why Congress limited the responsibility of the federal disbursing agents to determining whether the writ is regular on its face, and why it makes neither practical nor legal sense to put the federal government at the risk of double payment when the disbursing officer honors a state court order at risk on facts that the officer has no means of knowing, and on legal determinations that the officer has no authority or capacity to make.
It puts the federal government at risk that a federal court may subsequently decide that a facially valid state court order which the employee himself had chosen not to challenge at the time had been erroneously entered.
The practical effect on the federal government is plain.
Respondent's theory subjects the government unfairly to double liability even where it has performed all of the actions that the law requires, but the practical effect on the Congressional scheme in the garnishment statute is equally important.
Congress passed the garnishment statute in 1974 for the express purpose of providing a rapid and convenient means whereby former spouses and children could obtain enforcement of child support and alimony judgments.
It was based expressly on the findings by Congress that then existing remedies were inadequate.
In fact, after hearings and considerable investigation, Congress concluded that the failure of the system to provide adequate enforcement of child support and alimony orders were a major contributing cause to poverty and to the welfare problem, finding that there were large numbers of affluent and middle class fathers who simply abandoned their families and did not comply with the orders, leaving their families dependent upon public assistance.
The legislative history shows that Congress intended for garnishment writs to be honored on the basis of the state court order or decision alone.
It did not impose any other conditions precedent to the payment.
But under the holding of the court below, the government will be forced to take steps to protect itself from double liability.
Each of these possible alternative steps would erect an additional and unintended obstacle to the Congressional purposes.
There are three basic alternatives that the government faces in an instance where there is some doubt about the underlying jurisdiction of the court that entered the original judgment.
Now, respondent suggests, and this was also the alternative mentioned by the court below, that the government simply refused to comply with any garnishment writ where the employee has claimed that the jurisdictional basis of the underlying decree is defective.
But the effect of this would be to unilaterally deny the benefits of this statute to the spouses and children to whom Congress intended that they be present, and it would relegate them to the very remedies that Congress had found inadequate.
Now, I realize that the court below, echoed by respondent in his brief in this Court, are considerably more upbeat about those remedies that Congress had considered and found inadequate.
I don't propose to go into that particular debate, because for purposes of interpreting what Congress intended for this statute, it matters only that Congress drew the conclusion that those remedies were inadequate, and it is manifestly contrary to the Congressional purposes to enable a federal disbursing officer because of his unilateral doubts about a state court process to deny those benefits to the spouses and children Congress intended to assist.
But all of this is even assuming that the United States, having agreed to be subject in like manner and to the same extent as any private garnishee to garnishment writs would be free to disregard a facially valid and binding state court order, a matter which we consider highly dubious on its face.
The more likely alternative here is that the government's explanation for refusing to honor a writ would be treated as an answer or return under state law, but this would then put the government in the position of litigating against the spouse and children who were the intended beneficiaries of the statute.
They would be litigating against the spouse and children in state court on behalf of the employee concerning the validity of the underlying divorce.
I can imagine few roles which are less appropriate for the United States government than for it to be litigating on one side in state court of a marital dispute, and it would turn the purpose of the garnishment statute on its head.
Congress intended to make it easier for spouses and children to collect their alimony and child support rights, and instead, under the judgment of the court below, the government would be enlisted as their opponent in collecting those benefits.
The final alternative which in my view is the most likely in the long run if the judgment below were affirmed is that the United States would be forced to file interpleader actions in federal court to resolve who would be entitled to receive the employee's salary.
This would indeed get the United States off the hook for double liability, but there is very little else in the procedure that commends it.
First of all, the spouse and children would be forced to litigate their rights a second time in a more expensive forum.
Secondly, it would not even benefit the employee, the working spouse, since he would be required to litigate as well, most likely in the very state where the spouse and children are living, which was the very thing which he is trying to avoid through all of this, and the federal courts would be inundated with numerous new interpleader actions, in each one of which the question would be whether a state court divorce decree had been properly entered.
Neither the purpose of the statute nor any other sensible public policy would be promoted by this course of events.
But the results are not required, we submit, by the statute under the plain language of the statute.
Section 659(a) subjects the United States to exactly the same obligations as are imposed on private garnishees, yet private garnishees are not required to second guess state court judgments or to litigate on behalf of the principal debtors.
It is well established under the law of virtually every jurisdiction that the duty of a garnishee to his creditor is simply to give notice of the action, no more.
Even more clearly, Section 659(f) immunizes the government from liability for honoring a legal process that is regular on its face.
That seems plain enough.
The writ here, the garnishment writ was regular on its face.
The government should not be held liable for having honored it.
To reach its contrary conclusion, the court of appeals took a rather roundabout route of interpretation, holding that because the term "legal process" is defined in the statute to be, among other things, process which is issued by a court of competent jurisdiction, and then holding that the term "competent jurisdiction" necessarily means both personal and subject matter jurisdiction, the court came to the conclusion that a garnishment writ is not legal process regular on its face if the underlying judgment had been entered without personal jurisdiction over the employee.
Well, there are at least three flaws in this analysis.
First, it fails to read the phrase
"legal process regular on its face. "
as a whole.
It yanks the term "legal process" away from its context.
In context, it seems apparent that those attributes of being legal process should be matters that are discernible from the face of the writ.
Otherwise, the words "on its face" would effectively have no meaning in the context of the statute.
Second, the Court of Appeals focused on the wrong court.
The statute provides immunity for the United States for complying with legal process that was issued by a court of competent jurisdiction under the definitions.
The legal process that the United States complied with was the garnishment writ.
The question should be whether the court that issued that writ was competent to do so, not whether a divorce judgment which was underlying that degree was issued by a court of competent jurisdiction.
Now, the garnishment court is in some senses an ancillary proceeding to the underlying judgment, but for jurisdictional purposes it is a new action which is brought by the plaintiff, Mrs. Morton, against the garnishee, the United States, as the defendant, and there is no question that the Tenth Judicial Circuit Court of Alabama was a court of competent jurisdiction to issue this garnishment writ.
Whether or not the Alabama court properly had jurisdiction to issue a divorce is simply beside the point.
The third flaw in the Court of Appeals' analysis is that it assumes a definition of competent jurisdiction that is quite unnecessary and is inconsistent with the context in which it is used.
Competent jurisdiction is a term which frequently is used to mean subject matter jurisdiction alone.
It deals with the question of whether a court is competent to issue a particular type of order in a particular class of cases.
Now, in order to tell whether it has that definition or the more expansive definition, it is necessary to look at the term in context, and since in context it is apparent that it should be a matter which is discernible on the face of the writ, it is plain that the Court of appeals drew a conclusion which was unnecessary and in fact inconsistent with some of the other terms in the statute.
Now, the Court of Appeals apparently reached the tortured conclusion out of a fear that a contrary construction of the garnishment statute would violate Colonel Morton's due process rights.
We submit that there are no due process problems that would demand a non-literal interpretation of this statute.
Colonel Morton's due process rights may well have been violated by the Alabama divorce judgment, assuming that the Alabama courts in fact lacked personal jurisdiction over him, but that, of course, is true whenever a court erroneously exercises jurisdiction over a person.
Colonel Morton received notice of the divorce proceeding and made a deliberate tactical judgment not to defend his rights in that forum.
He could have made a special appearance to contest jurisdiction in the Alabama court.
He could have done so even after the initial entering of the final judgment, since he could do so in the course of defending the garnishment order.
And indeed because he is a serviceman, Colonel Morton has remedies that are available far in excess of those available to other citizens.
Under the Soldiers and Sailors Civil Relief Act, all he had to do was to send a letter to the Alabama state court, and he could have procured a stay of the action.
He could have obtained another look at the judgment even after it had been entered, or he could have obtained the appointment of a guardian at litum for him in the action.
But instead, on advice of counsel, Colonel Morton did nothing to protect his rights, and even today Colonel Morton has remedies that are available to him if his due process rights have been violated.
He would be able to cut off any future garnishments by simply defending against one of the garnishments on the basis of this alleged jurisdictional defect.
He also has the ability to sue plaintiff, who after all received the moneys that we are saying were illegally or unconstitutionally taken from him.
But nothing in the due process clause entitles Colonel Morton to shift the losses of his legal tactics onto his employer.
The United States is simply a stakeholder in this dispute.
We have complied with facially valid and legally binding state court process, as we are required to do under statute.
It is not our responsibility to assert respondent's rights in court or to make him whole again if the state court erred.
There is no violation of due process for a third party to rely in good faith on a facially valid state court judgment.
Thus, we submit that the judgment below should be reversed, because it is contrary to the plain language of the garnishment statute, because it produces an absurd result directly contrary to the legislative intent, because the result is not required by due process.
Unless this Court has some questions to ask of me, I will reserve the remainder of my time for rebuttal.
Chief Justice Warren E. Burger: Very well.
ORAL ARGUMENT OF KALETAH N. CARROLL, ESQ., ON BEHALF OF THE RESPONDENT
Kaletah N. Carroll: Mr. Chief Justice, and may it please the members of the Court, this is a military pay case.
Chief Justice Warren E. Burger: Would you raise your voice, please, a little, Mrs. Carroll?
Kaletah N. Carroll: I am sorry.
Does this need to be up?
Chief Justice Warren E. Burger: He is tuning it up a little now.
Kaletah N. Carroll: All right, sir.
This is a military pay case.
It involves the interpretation of a federal statute and how it is supposed to be administered by the military services.
This case does not in any way affect the Alabama court order.
It does not modify.
It does not hold it void.
It does not say anything to Alabama and to the order.
All it says to it is, you may not enforce it in this manner simply because it does not qualify under the definitions set forth in the federal statute, which is 42 USC 659 and 662, because that was amended in 1977 for the sole reason of clarifying this statute, as Senator Nunn made it clear when he argued for this amendment on the floor of the Senate.
Since that is true, we have to look... this is not a man that is trying to escape liability as you have heard about so many times, and you have heard them talk about the reason for this statute.
He kept right on paying.
This man kept on voluntarily paying.
After he had paid once in Leudon County, and after he had... after Mrs. Morton had gone to Alabama, and after he had one of the children with him, the other one was married and over the age of 18, he still kept on paying something to her pursuant to their initial agreement between the parties.
Let's look at this a little bit more.
Not all military people involved in these things are colonels.
They are not all in the situation that Colonel Morton is in.
Some of them, and very recently, have been in combat.
These people in Grenada, these people in Beirut.
And there is going to be more.
We cannot say that we are always going to have peace in this country.
But what they are really saying to him is, and to every soldier and military man is, you have got to tell your commanding officer, time, sir, stop the war, I have got to go home and fight a divorce case, because the ex-wife remarries, commingles her property with the husband, his tenants buy the entirety, and where is it?
Now, they have admitted at Page 6 of the reply brief that Colonel Morton's pay was indeed taken without due process of law.
The only basis of this, of course, would be the lack of in personum jurisdiction, and we are talking about what are legal obligations.
Now, he is arguing on this statute before it came into... before the amendments came into effect.
When the amendments came into effect, it put certain definitions in this statute, and this definition makes all the difference.
He says it is only the writ that we may look at.
Then why in the world would Congress have said, payments to provide for health care, education, recreation, clothing, and to meet other specific needs of such child or children, such term also includes attorney fees, interest, and court costs when and to the extent that the same are expressly recoverable as such, pursuant to a decree, order, or judgment issued in accordance with the applicable state law by a court of competent jurisdiction.
Does that mean the garnishment writ?
It does not.
It means that they have to look.
When they say on the face of, the face of a judgment is the face of the record, and not one sheet of paper.
They saw one sheet of paper.
It said "Court" and they stamped it approved.
Unidentified Justice: Have you seen many judgments on more than one piece of paper?
Kaletah N. Carroll: Many judgments, sir?
Unidentified Justice: On more than one piece of paper.
Aren't they usually one piece of paper?
Kaletah N. Carroll: Yes, sir, but, sir, when it says regular on its face--
Unidentified Justice: The way to try that out would be in the Alabama courts, wouldn't it?
Kaletah N. Carroll: --No, sir.
Unidentified Justice: Well, how else can you try out jurisdiction of the Alabama court other than in the Alabama court.
You say they didn't have in personum jurisdiction.
Kaletah N. Carroll: That's right.
Unidentified Justice: All he had to do was appear specially and try that out.
Kaletah N. Carroll: Your Honor, they did not at any time even acknowledge the Soldiers and Sailors Civil Relief Act, and they entered a void judgment without it.
Unidentified Justice: Well, he didn't--
Kaletah N. Carroll: He relied on the advice of the Air Force JAB at Elmundorf who told him that he did not have to bother with this, that they could not take his pay.
Unidentified Justice: --Mrs. Carroll, you say regular, when it refers to a writ regular on its face that, you say then you are talking about the face of a "record" rather than the writ?
Kaletah N. Carroll: The face of the record, sir.
Unidentified Justice: That is not what the statute says.
Kaletah N. Carroll: The statute says legal process regular on its face from a court of competent jurisdiction.
Unidentified Justice: Well, then, do you think regular on its face modifies legal process?
Kaletah N. Carroll: I don't think so, because legal process has indeed been pulled out of the statute and defined specifically in the definitions at 662(c).
Unidentified Justice: Well, your interpretation would offer... would leave the disbursing officers at sea, I would think, if they can't simply look at what they are served with and make a judgment.
Well, sir, if you will look at this case and read this entire brief, I think you will see it is not the disbursing officer that receives them.
There is an affidavit in there from the man and men of the finance center who reviewed these legally, and they are lawyers, and it says that it is their sole duty to review this legally to see if it meets the legal qualifications set forth.
Is there a provision in either the statute or the regulations as to what personnel in the service the writ of garnishment will be served upon?
Kaletah N. Carroll: Yes, sir, there is, and it is served upon the finance officer in Denver in this case.
Elmundorf is a mistake.
The finance officer in Elmundorf is the local finance officer.
The place where it was served was in Denver.
Mr. James Russell's affidavit before the court and which is cited here in both the petitioner's brief, petition, and in the court below in the dissent sets it out quite clearly, that they are legally reviewed.
Of course, if they find this too difficult to do, then there are such things as administrative judges, but there is some reason for Congress amending this statute.
They just didn't do it out of the sheer love of going in there and amending for nothing whatsoever.
If their position is true, why in the world would they have bothered to amend this statute and put this in saying you will have no liability if and only if?
They would not.
Congress is never presumed to do a useless Act, and that is what they are saying.
The thing here is that it does say in the major portion of this 659 section of that statute that they must be treated like any other private person.
Well, in Alabama, there is a case that was cited by the dissent which is the case of Harris versus National Bank, a 1981 case long after these Alabama statutes came into being which said once the amount is paid it discharges the garnishee, and in that case they cited the old 1876 case of Pounds versus Hammer, which says that any garnishee paying on a void judgment is liable.
Now, in the case that... this Harris versus National Bank case, the court there said, I am going to send this back, because this garnishee has to be repaid.
Who it's to be repaid from cannot be decided on the set of facts before this court.
But apparently they are both liable if you read that case.
And that falls into place with the case cite of Betts versus Cole, the 1979 Hawaii case cited by the majority.
But what has happened here is that the Air Force advocates that this is... you may just unilaterally take somebody's pay, that you don't have to look, and that you don't have to be careful.
They are impatient with the law.
They are impatient with process.
If indeed they were a stakeholder, they would have no problem with putting the case over into the federal court and let them decide whether the Alabama court itself had been totally arbitrary and capricious and unfair.
That court, I might say, would not really, in my opinion, be a fair court to go back to under the circumstances.
It would appear to me also that if they had just once done what they are supposed to do as far as the Soldiers and Sailors Civil Relief Act is concerned and appointed a guardian to represent this man, all of this would have been brought to the attention of the court.
Unidentified Justice: Did he at any time ask for appointment of a guardian?
Kaletah N. Carroll: The law does not require him to ask, sir.
He did not.
That would have been an appearance in the state of Alabama.
Unidentified Justice: My question... he did not--
Kaletah N. Carroll: No, sir.
Unidentified Justice: --He did not ask.
Kaletah N. Carroll: No, sir.
Unidentified Justice: Well, can he be heard to complain about something he didn't ask for?
Kaletah N. Carroll: Yes, sir, because the burden is not on him.
That particular law places the burden upon the court to do that, and says it shall not enter a default judgment unless this is done.
This case is such a unique case.
It is a Murphy's Law case below.
Everything that could possibly happen wrong in a case happened in that case.
If this case is upheld, then women can judge shop and forum shop all over the United States.
They can go anywhere.
They can then garnish on the strength of a void judgment, and they can say to the husbands, you know, well, when you are gone, I will take the money.
When I am remarried, there is no way you are going to get it back.
And this is not a fair procedure.
It would seem to me that this is the very reason that Congress enacted this amendment to this Act.
There are, according to the Air Force brief, there are 13,000 military garnishments to be had as a result of this new Act, and yet you will see only four or five cases, and though this was the most dire diversion of what the law had been, there have been... there has been amazingly little litigation on it.
Mostly it is not difficult to look at an order and see that there are two attorneys signed on the bottom of it.
Second, it is not too hard to ask to send me a copy of the return and a copy of the state law, which is done in the ERISA Act all the time.
That is not a difficult thing for any person to do that is trained in the law.
And it would appear to me that somebody has got to look out for soldiers who are gone and not let this kind of thing happen.
Yes, it is unique.
It is very rare.
Ex parte judgments are very rare to begin with, and then for this kind of thing to happen is extremely unique.
The bad part about this is there is no preexisting debt unless that lower court did in fact have personal jurisdiction over the defendant.
There is no debt for alimony and child support.
It is not like a business case where you have a preexisting debt and you may go in and enforce a preexisting debt.
The Air Force has not paid off a legal obligation of his, so they are not paying him twice.
They haven't paid him in the first instance.
All of this is very different from your business case.
When they adopted the law of garnishment, Congress took with it a whole body of law, and these are distinguishable in that you have to remember that none of these cases that are domestic cases have a debt existing.
I do not believe that this Court in looking at the whole decision would say that there has been a fair decision in this case as far as the Alabama court is concerned.
Unidentified Justice: Do you realize that the Alabama court's decision is not before us?
Kaletah N. Carroll: --Absolutely, sir, except there has been a finding by the Court of Claims--
Unidentified Justice: Well, you have been arguing about it... you have been arguing about it for the last 15 minutes.
Kaletah N. Carroll: --Yes, sir, and that is because our statute requires that alimony and child support be in accordance with the Alabama law.
They are not in accordance with the Alabama law.
Otherwise, there is liability.
Thank you, sir.
Chief Justice Warren E. Burger: Did you have anything further, counsel?
Michael W. Mc Connell: No, Your Honor.
Chief Justice Warren E. Burger: Thank you, counsel.
The case is submitted.
Unidentified Justice: The Honorable Court is now adjourned until Monday next at 10:00.