GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	1 

HOUSE BILL 781*

Short Title:  Elected Official Wage Garnishment.	(Public)
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Sponsors: Representative Brawley.
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Referred to:  Public Employees.
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March 22, 1989

A BILL TO BE ENTITLED
AN ACT TO PROVIDE FOR EXECUTION OF JUDGMENTS AGAINST ELECTED STATE OFFICIALS BY GARNISHMENT OF WAGES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1-303 reads as rewritten:
"§ 1-303. Kinds of; signed by clerk; when sealed.
There are four kinds of execution: one against the property of the judgment debtor, another against his person, another for the delivery of the possession of real or personal property, or such delivery with damages for withholding the property; and the fourth for garnishment of the income of an elected State official as provided in G.S. 1-314.1.  They shall be deemed the process of the court, and shall be subscribed by the clerk, and when to run out of his county, must be sealed with the seal of his court."
Sec. 2.  Article 28 of Chapter 1 of the General Statutes is amended by adding a new section to read:
"§ 1-314.1.  Execution against elected State officials.
(a)	Definition.  As used in this section, unless the context clearly requires otherwise:
(1)	‘Creditor' means a party in whose favor a judgment for a sum certain has been entered against an elected State official.
(2)	‘Debtor' means an elected State official against whom a judgment for a sum certain has been entered.
(3)	‘Disposable earnings' means that part of the compensation paid or payable by the State for personal services, including wages, salary, commission, bonus, payments to a pension or retirement program, and other similar payments that remain after the deduction of any amounts required by law to be withheld.
(4)	‘Elected State official' means a person who holds a State office elected by the people under Article II, III, or IV of the Constitution.
(b)	Motion for Garnishment.  Notwithstanding any other provision of law, a creditor may enforce a judgment for a sum certain entered against an elected State official by garnishment of the debtor's disposable earnings.  The clerk of superior court in the county in which the judgment was entered shall, upon motion of a creditor, notice and a hearing as provided in this section, and payment of the necessary fees for issuance of an execution, issue an execution ordering garnishment.  The creditor's motion for an execution for garnishment shall be verified, shall include a motion to join the State as a third-party garnishee defendant, and shall state:
(1)	That no execution has been issued on the judgment or, if issued, the execution has been returned and the judgment remains unsatisfied.
(2)	The debtor's monthly disposable earnings.
(3)	The amount sought to be garnished, not to exceed forty percent (40%) of the debtor's monthly disposable earnings.
(c)	Notice.  The motion shall be served on the debtor and on the State in accordance with the provisions of G.S. 1A-1, Rules of Civil Procedure.  The time period for answering or otherwise responding to proceedings, motions, and other papers issued pursuant to this section shall be in accordance with the time periods set forth in G.S. 1A-1, Rules of Civil Procedure, except that the State shall have 10 days from the date of service of process to answer both the motion to join it as a defendant garnishee and the motion for the garnishment order.
(d)	Order for Garnishment.  Following a hearing held on the motion, the clerk shall issue an execution on the judgment ordering garnishment of up to forty percent (40%) of the debtor's monthly disposable earnings if the clerk finds that the debtor is an elected State official against whom a judgment for a sum certain has been entered in favor of the creditor and that no execution has been issued on the judgment or, if issued, the execution has been returned and the judgment remains unsatisfied.  The order shall increase the amount to be garnished by an additional one dollar ($1.00) processing fee to be assessed and retained by the garnishee for each payment under the order.  The order shall be subject to review for modification and dissolution upon the filing of a motion in the cause.
(e)	Enforcement.  The execution shall be directed to the sheriff or other official of Wake County as provided in G.S. 1-313, after the judgment has been docketed in the county as required by G.S. 1-308.  The sheriff shall serve a copy of the execution on the debtor and the garnishee.  Upon receipt of an execution ordering garnishment of an elected State official's disposable earnings, the garnishee shall transmit the amount ordered to be garnished to the clerk of court who shall disburse it to the creditor.  The garnishee may not be required to change normal pay cycles, but shall ensure that payments are received as soon as practicable.  The garnishment order shall simplify the withholding process for garnishees to the extent possible.
(f)	Return.  The execution shall remain in effect no more than 90 days and shall be returnable to the court from which it was issued.  The provisions of G.S. 1-321 apply upon the return of an execution entered under this section."
Sec. 3.  This act shall become effective September 1, 1989.