# Appendix — Schleigh v. Reigh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1157%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 485 U.S. 970 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD CoPy AT THE TIME OF FILMING. IF AND WIEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED, Supreme Court of the United States Ocroser TERM, 1987 CHARLES L. SCHLEIGH, er at., Petitioners, Vv. ESTHER V. REIGH, er At., Respondents. On Perrrion ror A Wrir or CERTIORARI TO THE Unrrep Srates Court or APPEALS FOR THE “ourTH CixcuIT APPENDIX TO PETITION FOR WRIT OF CERTIORARI J. JosepH CurRRAN, JR., Attorney General of Maryland, Assistant Attorneys General, 7 N. Calvert Street, 2nd Floor Baltimore, Maryland 21202, (301) 576-6342, * Counsel of Record December 30, 1987 ————— SL LT. The Daily Record Co., baltimore, MD 21202 4g TABLE OF CONTENTS Page Fourth Circuit Attorney Fee Opinion 829 F.2d 1334 (4th Cir. 1987)........la District Court Attorney Fee Memorandum and Order, Civil No. M-83-245, (D.Md. Nov. 28, 1986)(unpublished)...5a District Court Memorandum, Order and Judgment, Civil No. S-83-245 (D.Md. Dec. 18, 1986) (unpublished)...39a Fourth Circuit Opinion on the Merits, 784 F.2d 1191 (4th Cir. 1986)........4la Supreme Court Order Denying Certiorari, EOF BGs FOr CEOOO Reb ese cwceccccccs 448 District Court Memorandum and Order on the Merits, 595 F.Supp. 1535 (D.Md. ee esc e ot ee District Court Permanent Injunction and Final Order, (D.Md. Nov. 27, 1984) (unpublished)... .cccsccccccccce 1658 IN THE UNITED STATES COURT OF APPEALS FOURTH CIRCUIT ESTHER V. REIGH, et al. v. : Nos. 87-1007(L) 87-1026 CHARLES L. SCHLEIGH, et al. : Before WINTER, Chief Judge, and RUSSELL and WIDENER, Circuit Judges Decided October 2, 1986 (829 F.2d 1334) PER CURIAM: Although ¢+fendants prevailed in the judicial aspects of plaintiffs' claim that Maryland's attachment procedures were uncon- stitutional because they did not afford procedural due process to a debtor and did not provide a sufficiently prompt hearing, Reigh v. Schleigh, 784 F.2d 1191 (4th Cir.) (reversing Reigh v. Schleigh, 595. F.Supp. 1535 (D.Md.1984), cert. denied, U.S. : 107 S.Ct. 167,. 93 L.Ed.2d 105 (1986), the result stemmed from Maryland's amendment of its rules while the litigation was pending. The district court found, however, that to a -la- limited extent, plaintiffs were "prevailing Parties" because their lawsuit caused Mary- land to correct the-constitutional deficien- cies in its attachment procedures and they were therefore entitled to an award of counsel fees under 42 U.S.C. §1988. The district court awarded $2,409.20. Plaintiffs had requested $12,000. Both parties appeal. Plaintiffs contend that the final order terminating the litiga- tion entered by the district court on remand from us is deficient because it contains no findings as to disputed issues and it fails to enter judgment for plaintiffs on _ the issues on which they prevailed. The signif- icance of the contention lies in its effect on the extent to which plaintiffs prevailed. Maryland does not contest the reasonableness of the attorney's fees that were awarded, but it contends that plaintiffs were not prevail- ing parties to any extent so that no award -2a- should have been made. We affirm in both appeals. We think that the final judgment entered by the disteiei court was entirely consonant with our decision. We also think that plain- tiffs did not gain victories, not reversed on appeal, that should have been included in the final order. The fact, however, that plaintiffs did not obtain a favorable final judgment does not foreclose all of their claim to attor- ney's fees. See Smith v. Univ. of North Carolina, 632 F.2d 316, 346 (4 Cir. 1980). Smith recognizes that an award may be made even if plaintiff does not obtain a favorable judgment if it is found that plaintiff's actions caused defendant to remedy his errant ways. The recent decision in Hewitt v. Helms, U.S. ~ SOT B.60. Seea. 08 L.Ed.2d 654 (1987), does not displace Smith; it confirms it. In Hewitt, the Court said: -3a- It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under §1988. A lawsuit somethimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment -- e.g., a monetary settlement or a change in con- duct that redresses the plaintiff's grievances. When that occurs, the plain- tiff is deemed to have prevailed despite the absence of a formal judgment in his favor. U.S. , 107 S.Ct. at 2676. Here the district court found that plaintiffs' suit "did achieve a_ limited change in the notice actually given to judgment debtors in postjudgment garnish- ments" and to that extent plaintiffs were "prevailing parties." The district court also found that only 20% of the attorneys' time was expended in accomplishing that limited change. Our review of the record satisfies us that these factual findings are not clearly erroneous and that the judgment is correct. AFFIRMED. -4a- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ESTHER V. REIGH, et al. : CIVIL ACTION NO. M-83-245 Vv. CHARLES L. SCHLEIGH, et al. : MEMORANDUM AND ORDER On October 31, 1984, this court granted the plaintiffs' motion for summary judgment (Paper No. 31). Plaintiffs then moved for attorneys' fees (Paper No. 33). Defendants filed a notice of appeal (Paper No. 34). Defendants submitted an opposition to an immediate award of attorneys' fees (Paper No. 36). Plaintiffs replied (Paper No. 37). On April ll, 1986, the United States Court of Appeals for the Fourth Circuit vacated this court's judgment and remanded the case to this court for “the entry of an appropriate order. . ." censistent with the -5a- Fourth Circuit's opinion. Reigh v. Schleigh, 784 F.2d 1191, 1199 (4th Cir. 1986) (Paper No. 28 of this action). Defendants then filed a motion for entry of final judgment (Paper No. 39). Plaintiffs opposed and cross-moved for final judgment (Paper No. 41). Defendants responded (Paper No. 40). Plaintiffs then supplemented their motion for attorneys' fees to include a request for fees for hours spent on the appeal (Paper No. 42). Defendants submitted an opposition (Paper No. 43). Julia M. Freit submitted an affidavit concerning the proposed changes to the Mary- land District Rules (Paper No. 44). Plain- tiffs' Petition for Writ of Certiorari was denied by the United States Supreme Court (Paper No. 45). Plaintiffs then filed a response to defendants’ opposition (Paper No. 46) and a supplement to their response to defendants' motion for entry of _ § final judgment (Paper No. 47). No hearing is needed to decide this matter. Local Rule 6(G). I. Factual Background On July 24, 1983, the plaintiffs insti- tuted this action to challenge the constitu- tionality of several of the rules applicable to post-judgment garnishment proceedings in Maryland District Courts (Paper No. 2). Some of the challenged rules were changed while this suit was pending. The somewhat confus- ing recent history of the challenged rules, as they existed at the time the suit was filed, as amended on October 21, 1983 and as amended effective July 1, 1984, was recounted in this court's Memorandum and Order in Reigh v. Schleigh, 595 F. Supp. 1535 (D. Md. 1984) as follows: "Under the challenged Maryland Dis- trict Court garnishment rules in exis- tence at the time this suit was insti- tuted, in order for a writ of attachment by way of garnishment to issue the judg- ment creditor filed instructions to the sheriff as to the description and loca- tion of the debtor's property to be -Ta- attached. M.D.R. Fl, G42d. The writ was then served on the garnishee, the person having property or credits belonging to the defendant. M.D.R. Fl, G47a. The writ of attachment was required to notify each person upon whom it was served, i.e., the garnishee(s), to file in writ- ing a defense, G52, within thirty days after service of the writ. If a claim of total exemption was filed by the garni- shee, the creditor, within thirty days, must have either dismissed or requested a hearing. If a hearing was requested, the matter was set for trial. M.D.R. F2. If some other initial pleading by the garni- shee or the debtor was filed, the case was also set for trial. M.D.R. F2b. Alternatively, the judgment debtor could obtain the dissolution of the writ by giving a bond in an amount equal to the attached property. M.D.R. Fl, G57. - A final alternative under the former rules was for the garnishee or the debtor to file a motion to quash the writ. Such a motion must have been filed within thirty days of the service of the writ on the garnishee. M.D.R. GSla. The court then, upon notice to the creditor, was required to hear the motion to quash 'forthwith.' M.D.R. Fl, G51l(b). The writ of attachment by way of garnishment remained in effect until it was quashed. M.D.R. Fl, G5dic. If no defense was filed within the thirty-day period after service of the writ, the judgment creditor could prove the amount of the debtor's assets in the hands of the garnishee, and a Judgment of Condemnation Absolute would thereupon be -8a- entered against the garnishee. M.D.R. F3. If the garnishee filed a Confession of Assets, the court could enter a Judg- ment of Condemnation Absolute. M.D.R. F4, Execution of Judgments of Condem- nation Absolute could be awarded by the court at any time. M.D.R. F5. At the December 2, 1983 hearing, this court observed that on October 21, 1983, the Maryland Court of Appeals had ordered the adoption of amendments to the Maryland District Rules, Chapter 1100, Subtitle G and Subtitle F. These changes were subsequently printed in the Maryland Register. Md.Admin.Reg. Vol. 10, Issue 23 (Nov. 11, 1983). The majority of these changes dealt with amendments to the G Rules, the statutory procedures governing attachment before judgment. Because, however, the post judgment gar- nishment procedures contained in Subtitle F incorporate by reference some of the G Rule procedures, Rule Fl was amended to incorporate the changes in the G Rule references. The only substantive change, as of October 21, 1983, in the post judg- ment garnishment procedures which are challenged in this suit is the change in Rule G51. The former Rule G51, providing the procedure for filing a motion to quash the writ, was deleted to accommo- date the adoption of a new Rule G5l, a comprehensive rule covering release of property and dissolution of attachment. The specific change in the procedures challenged by the plaintiffs and con- tained in the new Rule G51, as of October 21, 1983, was that now a hearing on a motion to release property or to dissolve the attachment pursuant to Rule G51 must be required by a party, and once reques- -9a- ted, the hearing shall be held '‘promp- Soy," rather than ‘forthwith, ' as required by the former Rule G5l(b). The remaining procedures or iack thereof challenged by the plaintiffs remained un- changed in the October 21, 1983 change in the rules. IV. Latest Changes in the Maryland Dis- trict Rules In their motions before this court, the defendants asserted that the changes in the Maryland District Rules that the plaintiffs sought were then currently under consideration and were expected to be put into effect in the next several months after the December, 1983 hearing. The defendants referred to the Tentative Draft of the Revised Maryland Rules of Procedure, published in November, 1982, by the Rules Committee of the Judiciary of Maryland. (Preface, Tentative Draft). As the plaintiffs accurately pointed out, the proposed rules contained in the Tentative Draft revised only the proce- dures of the Circuit Courts of Maryland and did not affect or attempt to alter the District Rules which contain the pro- cedures challenged in the present case. At the December 2, 1983 hearing, however, the defendants submitted to the court -a copy of the proposed Eighty- Eighth Report of the Standing Committee on Rules of Practice & Procedure. In that report, which was later submitted to the Court of Appeals on December 9, 1983, the Rules Committee proposed amendments to the Maryland District Rules. (Defen- dants' Exhibit No. 4). Md.Admin.Reg. -10a- Vol. 10, Issue 25 (Dec. 9, 1983). Three specific prop sed rules were called to the court's attention, 3-311, 3-643, and 3-645. 5 These proposed changes to the Mary- land District Rules were later adopted by the Maryland Court of Appeals on April 6, 1984, effective July 1, 1984. Md.Admin. Reg. Vol. 11, Issue 9 (Apr. 27, 1984). The new Maryland District Rules pro- vide that the judgment debtor will be mailed a copy of the writ at his last known address by the party serving that writ on the garnishee. The writ shall contain notice to the judgment debtor that federal and state exemptions may be available, anc of his right to contest the garnishment by filing a _ motion asserting a defense or objection. M.D.R. 3-645. A motion for exemption filed by the judgment debtor must be filed within thirty days of service of the writ. M.D.R. 3-643. Finally, the new rules provide that a party desiring a hearing on a filed motion must file a timely request within five days of service of the motion. M.D.R. 3-311(d)." (Id. at 1542-48) (footnotes omitted) .1/ 1/ The three versions of the Rules will be referred to in this Memorandum and Order as follows: 1) the rules in effect at the time this suit was filed ("the Old Rules"); 2) the rules as amended October 21, 1983 ("the Old Rules as amended"); and 3) the rules amended effective July 1, 1984 ( the New Rules”). -lla- This court found that the Old Rules, as amended, did not satisfy the requirements of due process, because there was no guarantee that the judgment debtor would receive notice of a garnishment sufficient to allow him to obtain a meaningful judicial determination of his right to an exemption. Id. at 1554. This court concluded, however, that New Rule 3-645(d), while somewhat ambiguous, appeared to provide for the timing of notice to the judgment debtor in a manner sufficient to satisfy the requirements of fairness inherent in the Due Process Clause. Id. This court next found that the content of the notice was insufficient in that it did not advise the debtor of the procedure for protesting the garnishment or the grounds on which the garnishment could be challenged. Id. at 1555-56. This court finally found that the Old and New Rules, which did not provide for a particular period of time with- -l2a- in which a motion asserting an exemption must be heard, were too easily abused and provided the opportunity for constitutional depriva- tion. Id. at 1556-57. This court cone luded that, if a hearing is requested, it must take place within two weeks of the request, and, if no hearing is requested, the claim of exemption must be resolved within two weeks of the date of its filing. Id. at 1557. There is evidence in the record that comments from the Legal Aid Bureau to the Maryland Court of Appeals Standing Conmittee on Rules of Practi¢e and Procedure ("the Rules Committee") may have been influential in bringing about some of the rule changes that occurred during the pendency of this suit (see Paper No. 43, Jan. 25, 1984 letter of John F. McAuliffe and attachment thereto; Paper No. 48, Exh. F at 28, 30-33; Paper No. 48, Exh. E at 2). -l3a- On May 21 and 22, 1982, before this suit was filed, the Rules Committee partially accepted the recommendation of the Legal Aid Bureau that the garnishment procedure provide for notice to the debtor and that such notice advise the debtor of the availability of exemptions (Paper No. 48, Exh. F at 30-33). The Committee, at one of its May, 1982 work sessions, agreed to change section (ce) of Rule 2-668 to read as follows: "After the garnishee is served, the individual making service shall promptly mail a copy of the writ to the debtor's last known address and shall file proof of service and mailing in the manner pro- vided by Rule 2-126." (Id., Exh. F at 33). After this court issued the October 29, 1984 Memorandum and Order, the Rules Conmmit- tee met on November 16 and 17, 1984 to con- sider what, if any, changes to the District Rules were mandated by this court's decision (Paper No. 48, Exh. J). During those meet- ings, it was suggested by a Committee member ~l4a- that the time limit for a hearing date be permanently changed to 14 days, consistent with this court's Memorandum and Order (id., Exh. J at 16). This suggestion was rejected (id., Exh. J at 17). Instead, the Committee approved the passing of an administrative order requiring that the hearing be held in 14 days. This measure was adopted, on a tem- porary basis, to keep the system operating while an appeal was pending (id.). The word "promptly" was left in the rule (id.). The members also discussed this court's sugges- tion that a list of exemptions be included in the notice, but rejected that suggestion as a permanent change in the Rules (id., Exh. J at 9-10). The Committee decided to approve the passage of an administrative court order to require the garnishment writ to contain a notice of a right to demand a hearing on a garnishment (id., Exh. J at 13). That deci- -l5a- sion was in accord with this court's ruling that the notice did not comport with due pro- cess when it did not advise the debtor of, inter alia, the procedure for protesting the attachment of his bank account. This court subsequently on November 27, — 1984 issued a judgment order and injunction which included a form of notice which the court found acceptable under due _ process standards (Paper No. 32). On appeal, the Fourth Circuit vacated this court's decision and remanded the case for the entry of an order in conformity with the Fourth Circuit decision. Reigh v. Schleigh, 784 F.2d 1191, 1199 (4th Cir. 1986). The Fourth Circuit held that the laundry list of exemptions suggested by this court was unnecessary. Id. at 1197. The court noted that the provision of New Rule 3- 645(c)(4) providing that the writ of attach- -l16a- ment served on the debtor "notify the judg- ment debtor that federal and state exemptions may be available," was sufficient. Id. at- 1197 n.4. The Fourth Circuit also held that there was no evidence of undue delay in these cases, and absent evidence of undue delay, the mere possibility that the term "promptly" was "too easily abused" in practice or fraught with "the opdortunity for constitu- tional violation" was insufficient to impose such an inflexible procedural rule as the 14- day rule on the administration of the state courts. Id. The Fourth Circuit did not discuss this court's requirement that there be notice given of a right to a hearing. While the judgment of this court was vacated, no indi- cation was contained in the Fourth Circuit's opinion that this court was in error in that regard. -l17a- Il. Prevailing Party A. The Legal Standard The Fourth Cireuit rule for deciding whether a party is a “prevailing party" for the purposes of 42 U.S.C. § 1988 was set forth in Bonnes_v. Long, 599 F.2d 1316 (4th Cir. 1979). Under Bonnes, the initial step is to determine “the precise factual/legal condition the fee claimant has sought <*v change or affect so as to gain a benefit or be relieved of a burden." Id. at 1319. Once this "benchmark" condition is established, the court must then determine whether "the outcome, in whatever form it is realized, is one to which the plaintiff fee claimant's efforts contributed in a significant way, coce” 5G. A party may be deemed to have "prevailed" even though it has not won all of the relief it requested. Disabled in Action v. Mayor & City Council of Baltimore, 685 F.2d 881, 886 (4th Cir. 1982); Bonnes, 599 -18a- F.2d at 1318. Where a case is mooted because of administrative, legislative or private action towards which it may be reasonably determined that the lawsuit has contributed in a significant way, the plaintiff is a prevailing party. Disabled in Action, 685 F.2d at 885; Young v. Kenley, 641 F.2d 192, 195 (4th Cir. 1981). If, however, the substantive relief sought by the plaintiff is obtained by legis- lative or other action which is not shown to have resulted from the judicial proceeding, the plaintiffs are not entitled to attorneys' fees. Bly v. McLeod, 605 F.2d 134, 138-39 (4th Cir. 1979). In Young v. Ker‘ey, Judge Butzner ex- plained the causation requirement and how it required different results in Young and Bly. 641 F.2d at 195. In Young, the plain- tiff Willie E. Young was a black woman who had been hired as a nurse by the Central Vir- -19a- ginia Health District. Id. at 193. Young was hired at a lower pay level (level "A") than recommended, because her nursing school had not been accredited by the National League of Nursing. Id. Young filed a com- plaint with the EEOC, after which the employer notified Young that she was quali- fied for level "B," a slightly higher pay level. Id. at 194. Young then filed several claims in the federal district court. Before her trial was completed, the parties reached a settlement agreement, which provided for, inter alia, a raise to the highest pay level, level °C." Id. In reversing a denial of attorneys' fees, Judge Butzner wrote: "This case is readily distinguish- able from Bly v. McLeod, 605 F.2d 134 (4th Cir. 1979). In that case a statu- tory amendment to Soutr Carolina's absen- tee ballot provision mooted plaintiffs' case. This court found that plaintiffs were not prevailing parties and denied attorneys' fees. We observed, ‘In order to recover. attorneys' fees and costs, plaintiffs must show at least some suc- cess on the merits.' 605 F.2d at 137. The substantive relief in Bly was -20a- obtained by legislative enactment which was not shown to have resulted from the judicial proceeding. Here, in contrast, settlement in the midst of trial demon- strates the lawsuit and the benefits obtained are causally related. Moreover, Young has clearly demonstrated success on the merits." Id. at 195. This court, therefore, concludes that in order for the plaintiffs to receive reason- able attorneys' fees in a case where the ultimate disposition of the case, by appeal or otherwise, is unfavorable to the plain- tiffs, the burden is on the plaintiffs to prove some causal connection between the plaintiffs' efforts in the litigation itself - and the change in condition. The Supreme Court has held that attor- neys' fees may be recovered for time spent pursuing extra-judicial administrative pro- eoodings if the work is “useful and of the type ordinarily necessary to secure the final result obtained from the litigation." Penn- -2la- sylvania v. Delaware Valley Citizens' Council for Clean Air, 106 S.Ct. 3088, 3096 (1986) (quoting Webb v. Board of Education of Dyer County, 105 S.Ct. 1923, 1929 (1985)). B. Discussion In deciding whether the plaintiffs are prevailing parties, the court has considered the precise factual/legal conditions sought to be changed, determined to what extent, if any, those conditions were changed and deter- mined to what extent, if any, the plaintiffs' actions in this lawsuit cause? such changes to occur. he The Benchmark The conditions existing at the time this suit was filed and sought to be changed were: 1) The Old Rules contained no require- ment that the judgment debtor be given notice of anything. See 595 F. Supp. at 1554. 2) Under the Old Rules, if the debtor or garnishee filed a motion to quash the writ, -22a- the court, upon notice to the creditor, was required to hear the motion "forthwith." Id. at 1543. The plaintiffs sought to change those conditions as follows: 1) Require that a timely notice be served upon the judgment debtor prior to, or immediately subsequently to, the service of the Order of Attachment upon the garnishee. 2) Require that such notice state the available state and federal exemptions and describe the procedure whereby the judgment debtor could challenge the attachment. 3) Require a prompt hearing, when requested by the judgment debtor, to contest an attachment. The Rules as they exist today are as follows: 1) A copy of the writ must be mailed to the judgment debtor at his last known address by the party serving the writ. -23a- 2) The writ shall contain notice to the judgment debtor that federal and state exemp- tions may be available and that the debtor has a right to contest the garnishment by filing a motion asserting a defense or objection. 3) If a hearing is requested, a hearing must be held “promptly.” In addition, the form of notice, now required by administrative court’ order, contains a notice to the judgment debtor that the debtor may request a hearing on a motion claiming an exemption of property from gar- nishment. : Some of the changes sought by the plain- tiffs have in fact occurred. The next in- quiry, therefore, is whether as a practical matter, the plaintiffs' efforts in this law- suit contributed in a material way to those changes. Most of the changes in the rules occurred while this suit was pending before -24a- this court although in part they were under consideration before this suit was filed. There is evidence that the extrajudicial efforts of the Legal Aid Bureau, plaintiffs' attorneys, may have contributed to some of those changes (Paper No. 43, Letter of John F. McAuliffe dated January 25, 1984; Paper No. 48, Exh. E at 2; Paper No. 48, Exh. F. at 28, 30-33). The efforts of the Legal Aid Bureau before the Rules Committee are not the type of efforts compensable under § 1988. Plain- tiffs argue that these efforts fall into the category of administrative efforts "useful and of the type ordinarily necessary" to secure the final result obtained from the litigation, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 106 S.C. 3088, 3096 (1986) (quoting Webb v. Board of Education of Dyer County, 105 S.Ct. 1923, 1929 (1985). -25a- A brief analysis of the Webb-= and Delaware Valley cases shows that the Legal Aid Bureau's extrajudicial efforts are not of the type for which credit may be given. In Webb, the Court held that fees were not recoverable for attorneys' services dur- ing school board hearings at which Mr. Webb challenged the termination of his employment as a school teacher. Id. at 1925. Webb then filed a 1983 suit, which was settled. Both parties agreed that Webb was the "prevailing party" in the 1983 suit. Id. at 1926. Webb sought attorneys' fees for the services of his counse!] at the administrative hearings in front of the school board on the basis that those hearings constituted proceedings to en- force a provision of §1983, within the mean- ing of §1988. Id. Webb alternatively argued that the time was reasonably expended in preparation for the litigation. -26a- The Court rejected both of these argu- ments, distinguishing Webb's situation from that involved in New York Gas Lioht Club, Inc. v. Carey, 447 U.S. 54 (1980). In Carey, the Court held fees recoverable for attorney services pursuing state administrative reme- dies required by Title VII. Section 1983 does not require the exhaustion of remedies. The administrative proceedings pursued in Webb were independent from the suit, the Court held. In Pennsylvania v. Delaware Valley Citi- zens' Council, 106 S.Ct. 3088 (1986), the Supreme Court allowed attorneys' fees for extrajudicial administrative work to enforce the provisions of a consent decree. Id. at 3094-96. Plaintiffs argue that the various letters to the Maryland Rules Committee were necessary to effect a rule change because the suit was brought against court clerks, who do not have the power to change the rules. This -27a- argument appears to undermine plaintiffs' claim that the suit was the impetus for the rule changes. On one hand, the plaintiffs argue’ that they should be deemed to have prevailed in the litigation because’ the litigation caused the rule changes. On the other hand, they argue that the litigation alone could not have caused the rule changes. The injunction issued by this court caused at least some change and would have caused more had it not been vacated. The plaintiffs' efforts before the Rules Committee were neither: required by statute, as in Carey, nor required to enforce any decree or order of this court, as in DeJaware Valley. Because those efforts are not con- sidered a part of the litigation for the pur- poses of fees, those efforts cannot be con- sidered a part of the litigation for the pur- pose of determining if the litigation caused the rule changes. This court, therefore, -28a- finds that the plaintiffs' efforts in this litigation did not cause the changes between the Old Rules and the New Rules. The Rules Committee did meet, however, on November 16 and 17, 1984 and approved some changes in administrative court orders to supplement the New Rules in response to the decision in this case. One change, the change relating to the wording of the notice describing state and federal exemptions which may be available, was not the change sought nor was it the change recommended by this court. Another change, the administrative order temporarily declaring that "promptly" means 14 days, was merely temporary, and was in fact rendered moot by the Fourth Circuit decision. A final change, that the notice to the debtor contain a provision notifying the debtor of his right to a hearing, was recommended in this court's decision and appears from the record to be a -29a- permanent change in the implementing admin- istrative state court order. It appears from the record, therefore, that this lawsuit actually caused no change in the Rules, but did achieve a_ limited change in the notice actually given to judg- ment debtors in postjudgment garnishments. Plaintiffs, therefore, are “prevailing par- ties" to a very limited extent. Plaintiffs also claim that they are pre- vailing parties because they succeeded in having the Old Rules declared unconstitu- tional (Paper No. 45 at 18-19). This issue was mooted by the changes in the rules which occurred during the pendency of this suit. Since the changes in the Old Rules were not brought about by the impetus of this suit, plaintiffs cannot be prevailing parties as to matters relating to the Old Rules. Having determined that the plaintiffs were prevailing parties to a limited extent -30a- in connection with offi@ial court procedures under’ the New Rules, however, the court believes that an award of some fees _ is appropriate. III. Calculating Attorneys' Fees Once it has been determined that attor- neys' fees are warranted, the court must decide what amount would be "reasonable." Hensley v. Eckerhart, 461 U.S. 424, 433 (1982). The first step in determining what amount is reasonable is to determine the number of hours reasonably spent on the liti- gation and multiply that by a reasonable hourly rate. Id.; see also Blum v. Stenson. 465 U.S. 886, 897 (1984). The product of this process is referred to as the "lodestar" or guiding figure. See e.g., Vaughn v. Board of Education of Prince George's County, 770 F.2d 1244, 1246 (4th Cir. 1985). Once the lodestar figure is obtained, that figure may be adjusted upward or down- -3la- ward depending on several factors, including the "results obtained." Hensley, 461 U.S. at 434; Barber v. Kimbrell's, Ine., 577 F.2d 216, 226 n.28 (4th Cir.), cert. denied, 439 U.S. 934 (1978). When a plaintiff has pre- vailed on only some issues, the degree to which the plaintiff prevailed is particularly important. Hensley, 461 U.S. at 434. "If, on the other hand, a plaintiff has achieved only partial or limited suc- cess, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were inter- related, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.... There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in mak- ing this equitable judgment. This dis- cretion, however, must be exercised in light of the considerations we have iden- tified, os." 461 U.S. at 434-37 (citations and footnotes omitted). A. The Lodestar Two attorney:;, Elizabeth Renuart and Mark J. Davis, who are or were associated with Legal Aid, represented the plaintiffs in this case. Between them, they seek compensa- tion for 130.20 hours work.2/ Defendants have not argued that any of the time spent on the trial and post-appeal work is unreason- able.24 Defendants also have not challenged the hourly rate of $95.00 per hour sought by the plaintiffs. As stated supra, the plaintiffs are not entitled to fees for the time that their 2/ Plaintiffs had submitted a request for fees for time spent by Elizabeth Renuart on the appeal of this case to the Fourth Circuit (Paper No. 42). Plaintiffs have since with- drawn that request (Paper No. 45 at 20). 3/ Defendants objected to the award of attorneys' fees for the appeal (Paper No. 43 at 15). That objection is now moot. (See note 2 supra). -33a- attorneys spent contacting the Maryland Rules Committee. Upon review of the time reports submitted, it appears that the time spent by Elizabeth Renuart on 4/82, 5/7/82, 5/11/82, and 6/21/82 was all spent in contacting or attempting to influence the Rules Committee. That time when aggregated comes to 3.25 hours. These hours will not be considered as part of the lodestar. The remaining hours listed in Elizabeth Renuart's initial affidavit add up to 71.35 hours. The hours listed in Mark J. Davis' affidavit add up to 21.5 hours .44 The additional hours listed in Elizabeth Renuart's affidavit attached to Plaintiffs' Response to Defendants' Opposition to Motion for Award of Attorneys' Fees add up to 33.95 4/ The Renuart time (71.35 + 3.25 = 74.6) is -4 hours short of the 75 hours claimed by Renuart. This is apparently an addition error. The Davis time (21.5 hours) is .25 hours more than that claimed by Davis. This is also apparently an addition error. -34a- hours (Paper No. 45, Exh. B.). Total hours allowable to compute the lodestar are 126.8. In plaintiffs' Motion for Award of Attorneys' Fees (Paper No. 33), plaintiffs state that the rate requested, $95.00 per hour, is slightly lower than the prevailing market rate charged by attorneys with five years' experience (id. at 5). In Renuart's latest affidavit, plaintiffs request a fee of $105.00 per hour. Because there is no expli- cit explanation of why plaintiffs are now seeking a higher rate than the initial rate of $95.00 per hour, the court will compute the lodestar based on the lower rate. The lodestar figure is 126.8 hours times $95.00 per hour, or $12,046.00. B. Adjustment to the Lodestar As stated above, the plaintiffs pre- vailed only to a very limited extent. Al- though some of the rule changes sought by the plaintiffs were in fact brought about by -35a- extrajudicial efforts of the plaintiffs' counsel, the court has found that’ those changes were not caused by this litigation. Plaintiffs' degree of success, therefore, is limited to the change to the notice form approved by the Rules Committee in response to this suit. Those changes were as follows: 1) the notice of state and federal exemptions was changed, but not in the way requested by the plaintiffs; 2) the notice form was changed to include a provision notifying the debtor of his right to a hearing; 3) the "promptly" hearing time requirement was tem- porarily changed by administrative order to 14 days, which latter change was mooted by the Fourth Circuit's opinion. In view of this limited degree of suc- cess as compared to what the plaintiffs were seeking in the lawsuit, this court will reduce the lodestar figure by 80%. Plain- tiffs will be awarded attorneys' fees of -36a- $2,409.20. IV. Motion for Entry of Final Judgment Defendants have moved for entry of final judgment (Paper No. 39). Plaintiffs have responded (Puper No. 41), and defendants have replied (Paper No. 46). The Fourth Circuit in Reigh v. Schleigh noted that before entry of final judgment, this court should inquire as to whether the form of writ in use by the Maryland District Court system conforms to the Rule requiring that the judgment debtor and the garnishees be informed in writs of garnishment that federal and state exemptions may be available. 784 F.2d at 1191 n.4. The defendants are ordered to produce a copy of the form of writ now in use in the District Court system. Entry of final judg- ment will be deferred until that writ is reviewed by this court. Accordingly, it is this 28th day of November, 1986, by the United States District -37a- Court for the District of Maryland, ORDERED: - That the defendants shall pay the plaintiffs $2,409.20 in attorneys' fees to be assigned as follows: Renuart $2,000.70 Davis 408.50 $2,409.20 2. That within fifteen (15) days of this Memorandum and Order, defendants submit a copy of the writ of attachment notice now used in the Maryland District Courts. 3. That final judgment be deferred until this court has had an opportunity to review that notice. 4. That the Clerk mail a copy of this Memorandum and Order to counsel for the parties. James R. Miller, Jr. United States District Judge -38a- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ESTHER V. REIGH, et al. : v. : CIVIL NO. S 83-245 CHARLES L. SCHLEIGH, et al. : MEMORANDUM Pursuant to Judge Miller's Memorandum and Order dated November 28, 1986 (Paper No. 49), defendants have submitted a copy of the writ of attachment notice now in use in the Maryland District Courts. After reviewing that writ, as directed by the Fourth Cir- cuit's decision in Reigh v. Schleigh, 784 F.2d 1191, 1197 n. 4 (4th Cir. 1986), this Court concludes that the writ is in the form prescribed by Md. Rule 3-645(c)(4). Final judgment, therefore, will be entered on behalf of the defendants by separate order. Frederic N. Smalkin United States District Judge -39a- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ESTHER V. REIGH, et al. : Vv. : Civil No. .. : § 83-245 LES L. SCHLEIGH, et al. ORDER AND JUDGMENT For the reasons stated in the foregoing Memorandum, IT IS, this 18th day at Meecees. 1986, by the Court, ORDERED and ADJUDGED: 1. That final judgment BE, and the same hereby IS, ENTERED in favor of the defendant, against the plaintiffs, on all counts; 2. That this case BE, and the same here- by IS, DISMISSED, with prejudice; 3. That the parties shall bear their own costs; and 4. That the Clerk of Court mail copies of the foregoing Memorandum and of this Order and Judgment to counsel for the parties. Frederic N. Smalkin United States District Judge -40a- IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ESTHER V. REIGH. et al. $ Appellees Vv. : NO. 85-1021 CHARLES L. SCHLEIGH, et al. : Appellants. Before WINTER, Chief Judge, and RUSSELL and WIDENER, Circuit Judges. Decided March 4, 1986 (784 F.2d 1191) RUSSELL, Circuit Judge: This is a suit challenging the constitu- tionality of Maryland's District Rules gov- erning post-judgment attachments of property of a judgment debtor as _ issued by the Maryland Court of Appeals and_ separately codified at the time this suit was filed as the Maryland District Rules, Chapter 1, 100- 700, 1106-1300. Chapter 100, Subtitles G&F contain the challenged procedures. The four plaintiffs are judgment debtors whose bank accounts had been attached in 1982 under -4la- writs of attachment which had been issued under such rules but which had been vacated before this action was begun. They allege, and it was not disputed, that their bank accounts, which had been attached, consisted exclusively of either Social Security or Aid to Families with Dependent Children payments. In all cases, the plaintiffs filed with the Maryland court exemption claims and _ the claimed exemptions were sustained by the court in 1982. It was not until January 24, 1983 after the claims of exemption were upheld that the plaintiffs filed this action asserting the unconstitutionality on due process grounds of the procedures established under the Maryland Rules for the issuance of post-judgment writs of attachment. The Maryland post-judgment attachment Rules, in force when this action was begun, made no provision for notice to the judgment debtors of their possible state or federal exemptions. The rules did provide that, if the judgment debtor, after learning of the garnishment, moved to quash the writ within thirty days, the court was required to hear such motion "forthwith." Prior to judgment below, however, the Rules were amended by the Maryland Court of Appeals to provide (1) for notice of the attachment to be given the judgment debtor by the person serving the writ upon the judgment debtor "promptly after service upon the garnishee" and (2) for notice to the judgment debtor at the same time as notice of attachment "that federal and state exemptions may be available" to him or her. The Rules, also, gave the judgment debtor notice of the right to file a motion claiming an exemption or objecting to the garnishment within thirty (30) days and to request a hearing on such motion, which, when requested, must be held "promptly." The parties seem to have agreed that the action -43a- should be determined on the basis of the Rules as amended and the decision of the district court from which this appeal is taken, proceeded on that basis. After denying the defendants' motion to dismiss the action for mootness, the district court reviewed the Rules as revised and con- cluded that the notice of the issuance and service of the writ on the judgment debtor, as provided in the Rules, complied to that extent with the requirements of due process but that the procedure in the Rules remained defective in two respects: (1) They “do not provide for ade- quate notice to a judgment debtor of the claims of exemption which are available"; and (2) They do not “assure resolution of a claim of exemption within a reason- able time," which the district court fixed as "within two weeks" from the time the claim of exemption is filed. In order to correct these perceived defects, the district court enjoined the issuance of post-judgment writs of attachment without -44a- conforming to a form to be approved by the court listing all exemptions and setting forth a procedure for resolving such claims for exemption by the judgment debtor within two weeks (later stated as 15 days). Reigh v. Schleigh, 595 F.Supp. 1535 (D. Md. 1984). The defendants have appealed from the judgment entered by the district court. Their first ground on appeal is the mootness of plaintiffs' claim. Turning to the merits, they cite Endicott Johnson Corporation v. Encyclopedia Press, Inc., 266 U.S. 285 (1924) as authority for the proposition that there is no due process right on the part of a judgment debtor to notice of the issuance of a writ of attachment, of his entitlement to state or federal exemptions, or to a right to contest the writ promptly. Assuming, how- ever, that due process guarantees’ these rights to the judgment debtor, the defendants argue that the amended Rules, which were the -45a- sa rules on which the district court based its ruling, fully satisfied due process require- ments and the contrary judgment of the district court is in error. While there is much to be said for the mootness argument since the writs of attach- ment in the case of all four plaintiffs had been vacated before this action was com- menced,t/ we are of opinion that under our decision in Harris v. Bailey, 675 F.2d 614 (4th Cir. 1982), the facets of which are almost identical to those in this case, the claim of mootness by the defendants is with- out merit. Nor is an issue posed in this case on the duty of the defendants under due process grounds to provide notice in a post judgment proceeding of the fPssuance of the writ of attachment to the judgment debtor and to acquaint him of his opportunity to make a -£ See, the dissenting opinion of Aldisert, J., in Finberg v. Sullivan, 634 F.2d 50, 68 (3d Cir. 1980). -466- timely contest of the writ or of his right to a "prompt" hearing on request. The amended Rules give the judgment debtor those rights. What is challenged in these Rules and only what is challenged is whether the notice of the writ must inelude notice of all possible federal and state exemptions, and whether the hearing afforded the judgment debtor must be held "within two weeks" or "fifteen days" after request therefor. Addressing the first of these two ques- tions, we begin by recognizing that there is a conflict in the decisions on the necessity for the notice to the judgment debtor of the writ to inelude a list of all available federal and state exemptions that might be available to the judgment debtor. Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980) (en banc) is generally cited as the recognized authority for the view that all available exemptions must be listed in the notice to -47a- the judgment debtor, though the actual holding in that case did not go that far. For other cases, generally cited to this effect, see Neeley v. Century Finance Co. of Arizona, 606 F.Supp. 1453 (D.Ariz. 1985); McCahey v. L.P. Investors, 593 F.Supp. 319 (E.D.N.Y. 1984); Clay v. Fisher, 584 F.Supp. 730 (D. Ohio 1984); Dionne v. Bouley, 583 F.Supp. 307 (D.R.I. 1984), modified, 757 F.2d 1344 (lst Cir. 1985); Deary v. Guardian Loan Co., Inc., 534 F.Supp. 1178 (S.D.N.Y. 1982); Betts v. Tom, 431 F.Supp. 1369 (D. Hawaii 1977). In Finberg the bank account of the judgment debtor had been seized; the account consisted of funds "entirely exempt from attachment and garnishment," representing deposits of Social Security benefits and moneys within a general “exemption to a class of debtors which includes Mrs. Finberg." 634 F.2d at 52. Both of these exemptions were said to be "designed to protect a debtor's -48a- means of purchasing basic necessities" and failure to recognize such exemptions could cause "serious, undue hardship" to a debtor in Mrs. Finberg's situation. The majority in that case, after declaring that "the content of the notice depends upon the circumstances of the particular case," required that the notice to Mrs. Finberg should expressly iden- tify those two exemptions but it added this cautionary note: "Because Mrs. Finberg did not claim other exemptions under Pennsylvania law, we need not determine the effect of our decision on Pennsylvania exemptions’ not claimed by Mrs. Finberg." 634 F.2d at 62. Finberg, thus, is not authority for the proposition that due process requires that the notice to the judgment debtor include all possible exemptions; it only declared that, based on "the circumstances" of Mrs. Finberg's particular case, two express exemptions claimed by Mrs. Finberg’ should -49a- have been noticed.2/ Many of the decisions which have followe d Finberg and have been cited in support of a rule that due process compels a listing of all exemptions in the notice to the debtor have generally had the same ambiguity as Finberg. Thus, in Neeley v. Century Finance Co., 606 F.Supp. at 1465, the court said categorically that "[d]ue process does not require that all exemption-§ statutes. be identified and set forth in detail" in the notice given to the judgment debtor in a 2/ This limited construction of the ruling of the majority in Finberg was recognized by Judge Aldisert and was ® part of his dissent (634 F.2d at 82): Although the majority are unwilling to provide notice of all exemptions avail- able under state and federal law, there is no principled reason for excluding other exemptions of equal importance in future cases. It will therefore not be unexpected for the Community Legal Services, Inc. to bring a new case in the district court alleging deprivation of due process for a creditor's failure to notify a debtor of other exemptions. -50a- post-judgment garnishment or attachment, but only "[t]hose exemptions that occur fre- quently should be included in the notice" and, in that context, the court declared it was “not deciding, other than for wages, {under the Arizona statute] what particular exemptions must be identified." To the same purport is Harris v. Bailey, 574 F.Supp. 966, 971 (W.D.Va. 1983). There the court expres- Sly said that "notice of all available -exemptions," which would represent, in the court's words, "a potentially confusing laundry list™ more likely to confuse than to clarify, was not required by due process. Its rule was "that the summons served on the debtor contain .a list of those essential federal and state exemptions that provide the basic necessities of life for someone in Mrs. Harris' position. The Social Security exemption certainly should be included; such benefits provide the bare necessities for -S5la- many in our society." The New York cases of Deary v. Guardian Loan Co., Inc., 534 F.Supp. 1178 (S.D.N.Y. 1982), and McCahey v. L.P. Investors, 593 F.Supp. 319 (E.D.N.Y. 1984) dealt with a state procedure which by statute required a notice to the judgment debtor, giving him what the notice said was "a partial list of money which may be exempt" [the statutory list ineluded nine specific exemptions]. See section 5222 of the New York statutes as quoted in McCahey in note ] on pages 321-322. Manifestly, the notice was defective if it did not comply with the man- date of the statute: However, the important fact is that the notice only ineluded nine exemptions which the legislature found to be required included in the notice to the judg- ment debtor. The contrary view has been expressed in Dionne v. Bouley, 757 F.2d 1344, 1354 (lst Cir. 1985), modifying 583 F.Supp. 307; Brown -52a- v. Liberty Loan Corp. of Duval, 539 F.2d 1385, (Sth. Cir. 1976), cert. denied, 430 U.S, 949; see also Duranceau v. Wallace, 743 F.2d 709, 712-713 (9th Cir. 1984)3/ ana particularly, the carefully reasoned dissents of Judge Aldisert and Judge Weis in Finberg. 634 F.2d at 64 et seg., and 93 et seq. In his dissent, criticizing the requirement that the exemptions be listed in the notice to the judgment debtor, Judge Aldisert said (634 F.2d at 84): The majority have constructed a veritable Frankenstein, a complicated procedure that far exceeds the hurt it is designed to heal and will, in the end, prove counterproductive. Given the sheer numerousness of Pennsylvania exemptions and the complexity of alternative pro- cedures to claim them, the majority's requirement in reality departs substan- tially from the simple notice the Supreme 3/ The state garnishment law required notice of the exemption for 50% of the judgment debtor's wages but imposed no obligation to notice any other specific exemption. This case, though arising under the law of the State of Washington, was apparently similar to the Arizona case involved in Neeley, Supra. -53a- Court recommended in another context. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15, 98 S.Ct. 1554, 1562-1563, 56 L.Ed.2d 30 (1978). More- over, the notice requirement has no ana- logue in,..the Federal Rules of Civil Pro- cedure, which were promulgated by the United States Supreme Court. The brute fact is that there are so many exemptions that to set forth this information on a writ would present a mass of incomprehen- sible boilerplate reeking with legalese. Judge Weis, in his dissent on the same subject, declared (634 F.2d at 93): I also share Judge Aldisert's mis- givings about the desirability and effec- tiveness of the notice required by the majority. There are simply too many variations and nuances in the Pennsyl- vania exemption laws to permit’ the preparation of a brief yet comprehensive, and simple yet precise, explanation that will be of assistance to the average debtor. The fragmented approach taken by the majority in this case inevitably will lead to further litigation and the same overkill that has characterized the excrescent | disclosure requirements created by administrative and judicial interpretations of the Truth in Lending Act. 3s Judge Weis also refers to "the $300 exemption under Pennsylvania law" and suggests that if notice of such exemptions were required to be included it should set out as well the exemp- -54a- tions to that exemption under the statute just as exemptions for certain pension bene- fits must be ineluded if Social Security payments are to be declared exempt in the notice to the judgment debtor. Finally, he comments that he was "not impressed with the equities of imposing additional procedural burdens on a creditor who has already been put to the trouble and expense of securing a judgment against a debtor who has failed to meet his obligations.... Some responsibility for safeguarding the exemption Ttould be placed upon the debtor." Id. at 93, 94. In Dionne v. Bouley, supra, the court ruled that a decision similar to that under review in requiring notice to judgment debtor~ of all exemptions at time of the attachment was in error, saying (757 F.2d at 1354): We do not agree that, to be constitu- tional, the notice provided to a judgment debtor after attachment must inform him of all, or even close to all, of the available exemptions. In a somewhat analogous situation, the Court has said -55a- that due process requires notice to be "reasonably calculated, under all the cirecurmstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." .. . In the present situation we think the debtor must be informed of the attachment and of the availability of a prompt procedure to challenge the attachment, ... together with the fact, generally stated, that there are certain exemptions under state ~ and federal law which the debtor may be entitled to claim with respect to the attached property. The state, however, is not required to supply the debtor with a "laundry list" of statutory exemptions. The latter requirement, we think, gives insufficient weight to the state's interest in avoiding overly burdensome requirements. . . . We know of no paral- lel situation where the due process clause has been held by the Supreme Court to mandate judicial enactment of a kind of "truth in lending" provision. We are persuaded by the dissenters in Finberg v. Sullivan that a detailed list of state and federal exemptions is neither re- quired by the Constitution nor would it, in the final instance, be useful to the debtors. ... A detailed requirement of this type which -would have to be con- stantly updated whenever state or federal law was revised--contradicts the spirit of modern civil procedure which encour- ages notices to be effected in a single, concise and direct manner. . . In any case, while of course the state is free to adopt such an elaborate requirement if it wants, we do not think the Constitu- tion compels it. (citations omitted) ~56a- We are persuaded by the reasoning in_the Finberg dissents and in Dionne that due pro- cess does not mandate that the notice to the judgment debtor of the attachment’ should include a list of all the exemptions possibly available to the judgment debtor; it is suf- ficient that the notice alert the judgment debtor "that there are certain exemptions under state and federal law which the debtor may be entitled to claim with respect to the attached property, and that there is avail- able a prompt procedure for challenging the attachment." Even the decisions which require some specification of exemptions shy away from requiring a listing of all exemptions. Most of these decisions, as we have seen, identify only one or two exemptions which they would require to be specified in the notice. Such decisions give diverse reasons for the speci- fication they require. In Neeley, for -57a- instance, the court said those exemptions "that occur frequently" should be identified in the notice but the court failed to indi- cate which exemptions would qualify under this ruling for specification, leaving that matter open for other litigation. Harris, after declaring that a “laundry list" speci- fication of all exemptions "is not required by due process" laid down the rule that only those exemptions which cover moneys "that provide the basic necessities of life for someone in. Mrs. Harris' position," a rule which at least, the court says, should include Social Security payments. Finberg established much the same rule, if Mrs. Finberg claimed such exemptions but only if she did. All of these standards for deter- mining which exemptions to be specially identified in the notice to the judgment debtor are elusive and indefinite, mere encouragement to confusion, misunderstanding -58a- | and other litigation. Must a judicial officer determine at his peril whether an exemption "“occur[s] frequently" or what exemption was necessary in the case of one whose condition was like either Mrs. Harris' or Mrs. Finberg's in order to provide them with "the basic necessities of life," which we would assume would be related to the judg-> ment debtor's age, education, financial con- dition, ete.? A requirement for listing all exemptions or an abbreviated or "fragmented" list of such exemptions under the standards set by Finberg and its progeny would create a "veritable Frankenstein, a complicated proce- dure that far exceeds the hurt it is designed to heal and will, in the end, prove counter- productive," as Judge Aldisert correctly observed. We are satisfied that a notice which advises the judgment debtor that there are state and federal exemptions that may be available to him, coupled with notice of the -59a- right to contest the attachment, meets the requirements of due process. The notice provided in the revised Rules in this case meets this test. AL The district court, also, found that a requirement of a "prompt" hearing on a judg- ment debtor's claim of exemptions against a writ of garnishment violated due process. It held specifically that the Rules would Al While the revised Rule issued by the Court of Appeals of Maryland clearly states that the writ of attachment served on the judgment debtor shall “notify the judgment debtor that federal and state exemptions may -be available" (Rule 3-645 (c)(4)), the appel- lees have attached in an addenda to their brief a form of attachment (see pp. 2-3 of the "Addenda to Brief of Appellees"), which is not in the form prescribed by the Rule-- which, in fact, does not refer to federal exemptions at all--and which the appellees suggest is the form still used by the state courts. The district court should inquire on remand whether the form of writ now in use conforms to the Rule noticing the judgment debtor that there may be federal and state exemptions available to him. If the form in use does not conform, and is in the language set forth in appellees' "Addenda," the dis- trict court should require prompt ~evision of the writ of attachment form. -60a- satisfy due process only if they provided explicitly that the hearing on any challenge to the writ be heard “within two weeks." It justified such inflexibility in the statute because, without such an absolute require- ment, the rights of the judgment debtor could be "too easily abused" and there was too much "opportunity for constitutional deprivation." We are unable to agree--at least on the pres- ent record before us. The Rules issued by the State Court man- date that the hearing on the judgment deb- tor's request for a hearing on his exemption clalm shall be held "promptly." That, inci- dentally, was all that the plaintiffs in this case asked for in their prayer for relief when they commenced this action. Thus, in their "Statement of Claim" in their complaint they asserted that the Rules then in force failed to "require a prompt hearing when requested by the judgment debtor to contest -6la- an attachment." (Italics added). The amended Rules, however, provide them with a right to "a prompt hearing." In determining whether, despite the amendment of the Rules to provide for the "prompt" hearing that the plaintiffs had requested in their prayer for relief, the district judge was correct in promulgating under due process a specific time limit within which a hearing to contest an attach- ment or garnishment should be held under the Maryland procedure, we begin by noticing, as did the court in Trans-Asiatic Oil, Ltd. S.A. v. Apex Oil Co., 743 F.2d 956, 960 (ist Cir. 1984) that "'[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation, '"2/ Further, federal courts should be loath both on grounds of comity and federalism to intrude upon the rule-making 57 Quoting from Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). -62a- functions of state courts and, even in those rare instances when compelled to do so under their duty to uphold federal constitutional rights, should act cautiously and with moder- ation. And this principle has particular applicability where state judicial procedures are concerned. See dissenting opinion of Aldisert,J. in Finberg at 69-70, especially note 6. It is a new idea that federal courts should fetter state courts with inflexible time frames for the administration of their courts. Only in Finberg prior to this case has an appellate court imposed on state courts under due process a rule requiring that all challengers to an attachment or garnishment be heard within two weeks; other courts have followed a more flexible course, finding due process satisfied by a require- ment of a "prompt" or "expeditious" hearing. In Dionne for instance, the court recognized, as has the Court of Appeals of Maryland, that the judgment debtor is entitled to "a prompt post-attachment hearing," p. 1357, but it eschewed any attempt at stating that term in strict mathematical terms (i.e., fifteen days). In McCahey v. L.P. Investors, 774 P.2d at 552, 553 the court was confronted with an objection to the New York garnishment statute which provided for an "expeditious" or “prompt" hearing on exemption claims by the judgment debtor. The judgment debtor asserted the statute was constitutionally defective because it did "not provide a mandatory outside time limit on according a hearing on an exemption claim." The court refused to find the statute invalid on this ground, saying that “we are unwilling to invalidate a statute because it might, but need not, be applied in an unconstitutional manner." The Supreme Court itself in North Georgia Finishing, Ine. v. Di-Chem, Inc., 419 -64a- U.S. 601, 606 (1975), which was a pre-judg- ment attachment where a party would be expected to enjoy greater rights than one who has already been adjudged judicially liable, required only an “early hearing," or as Justice Powell stated in his concurring opinion, "a prompt and adequate hearing," p. 613. It is true this was an admiralty case and not one involving a garnishment of an individual's bank account; but it is impor- tant to emphasize that it was a pre-judgment attachment and not, as here, a post-judgment attachment. Trans-Asiatic, supra, also invoived a pre-judgment attachment in admir- alty. It found that "a hearing within four weeks of [the defendant's] request for an expedited hearing" on the. validity of the attachment met the standard for promptness. 743 F.2d at 962. In Deary v. Guardian Loan Go.,. 894 2. 8epe.. 1178 -18.D.E.Y... 3083) tae court, though it agreed with Finberg that -65a- notice of exemptions should be given the judgment debtor in state garnishment post- judgment proceedings because required by state statute, did not follow Finber on the requirement of an inflexible standard for the holding of a hearing on a challenge to the writ of attachment, saying only (p. 1188): Assuming without deciding that some prompt post-enforcement procedure would satisfy constitutional requirements, the opportunity to challenge the enforcement action must not be unnecessarily delayed. In Brown, supra, the Fifth Circuit indicated that unless "there [was] an extended delay in setting the hearing on the exemption in state courts," there was no occasion for action by a federal court on due process’ grounds. (Italics added.) In this case, there is no evidence of "extended delay," no "foot-dragging” or dila- toriness by the state courts in disposing of challenges to garnishment proceedings. Two of the claims in this case had the hearing * -66a- set and the contest disposed of within two weeks after the judgment debtors filed their claims of exemptions and this occurred when the judgment debtors were proceeding pro se. In the third case, the claim of exemp- tion was disposed of within a month. In that case, the judgment debtor was represented by counsel which would suggest that the proceed- ing may have presented some unusual features. In any event, there is no basis for a finding of any "extended delay" or inattention to these claims of exemptions by the state courts in these three cases. In fact, there is no allegation of such a delay in the com- plaint nor is there any basis in the record for a finding that the hearings in any of the three cases were unduly delayea.5/ S/ All three of these cases were disposed of when the hearing requirement wes "forthwith" and not "“promptiy"™ as i present Rule. We seriously question, NWSewer,. whether the State courts will Decome iess diligent in disposing of claims of exemptions in garnish- ment proceedings simply Deceuwse the Rule has : The district court, however, found "promptly" too neutral a term for fixing the time within which a hearing or the challenge to the garnishment was to be held, even though that term was used approvingly by the Supreme Court in Di-Chem, because, it said, it was a term "too easily abused" in practice and fraught with "the opportunity for consti- tutional violation." We are unable to accept this as a basis for imposing on the courts of Maryland an inflexible rule governing proce- dure in the administration by the courts of that state of proceedings such as_ those involved here when, as here, there is no credible evidence of “extended delay" on the part of the Maryland courts in disposing of challenges by vacnisheds to the writ of attachment. That is not to say that if at some future date there should be evidence of substituted "promptly" for "forthwith," and, therefore, regard the change of little or no moment. -68a- "extended delay” in any other case and some- thing more than mere hypothetical! scenarios of possible judicial abuse shown, a federal court will stay its hand. But, without any evidence of such delay in this case, the district court erred in undertaking in this record to tether the state's proceedings to any mathematical rule for disposing of the challenge to the writ of attachment and to invalidate the state procedure "because it might, but need not, be applied in an uncon- stitutional manner." See McCahey. The judgment of tthe district court enjoining the state courts of Maryland in their garnishment proceedings, to include a list of all federal and state exemptions in the notice of garnishment’ served on. the judgment debtor and to provide on request a hearing on any challenge by a judgment debtor to the garnishment writ within fifteen days after the filing of the request is accord- -69a- ingly vacated and the cause is remanded to the district court for the entry of an appro- priate order in conformity with this deci- sion. VACATED AND REMANDED. WIDENER, Circuit Judge, dissenting: I respectfully dissent. I believe that there is no case or controversy and that we are without subject matter jurisdiction to decide the merits. The majority's reliance upon Harris v. Bailey, 675 F.2d 614 (4th Cir. 1982), I sug- gest, is misplaced.t/ The plaintiff in Harris filed her § 1983 action before her d/ As 1 indicate, Harris is distinguishable ~ from our case on its facts. If the majority feels it is not, however, then we _ should simply decline to follow the 1982 circuit precedent in favor of the 1983 Supreme Court precedent. -70a- a state garnishment proceeding was decided. 675 F.2d at 616. Traditional doctrines of mootness were held to be applicable because there was at least an actual controversy existing regarding the accounts which had been garnished at the time the federal case was filed. Here all three of the state garnishment proceedings were concluded in the plaintiffs' favor before this § 1983 action was filed. Plaintiff Esther Reigh's account was held exempt from attachment by a state court ruling on July 29, 1982. Plaintiffs Ivery Mae Simpkins and David Simpkins received a state court ruling exempting their account on December 6, 1982. Plaintiff Lenora C. Dannie received a state court order exempting her account on December 29, 1982. This suit was filed in the district court on January 24, 1983. Thus no controversy existed when the federal suit was filed. All that was present was the fear of future con- -7Tla- troversy. I think City of Los Angeles v. Lyons, 461 U.S. 95 (1983) requires the dismissal of this action on the ground that no case or controversy exists. In Lyons the plaintiff sought an injunction24 against the City barring the use of choke-holds by police officers. Lyons had been the victim of such control hold procedures in the past and argued that he could again be the subject of such a procedure in the future absent judi- cial relief. While the Court did not find Lyons' claim moot it found that the complaint did not allege a case or controversy to satisfy the threshold requirements of Article III of the Constitution. Relying upon the language of O'Shea v. Littleton, 414 U.S. 488, 495-6 (1974) the Court said "[plast 2/ Lyons also sought damages against the City of Los Angeles for past use of the pro- cedure. The Court's cpinion does not effect [sic] that portion of Lyons' claim. -72a- i aman exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . .. . if unaccompanied by any continuing, present adverse effects." Lyons, supra at 102. Plaintiffs here sought to have the state post-judgment attachment procedure declared unconstitutional and its enforcement enjoined. They have alleged no more than Lyons did, that is that they were exposed to illegal conduct in the past. Their belief that their bank accounts may again be attached does not create a case or contro- versy that must be present to invoke federal court jurisdiction. Lyons, supra at 104. I would therefore vacate the judgment below and remand with instructions that the district court dismiss the action for want of @ case or controversy under Article III of the Constitution. -73a- IN THE UNITED STATES SUPREME COURT Esther V. REIGH and Ivery Mae Simpkins and Lenora C. Dannie, petitioners, v. Charles L. SCHLEIGH, ete., et al. No. 85-7231. Case below, 595 F.Supp. 1535; 784 F.2d 1191. Petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit. October 6, 1987. Denied. Justice SCALIA took no part in the consideration or decision of this petition. -74a- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ESTHER V. REIGH, IVERY MAE SIMPKINS, DAVID MICHAEL SIMPKINS, and LENORA C. DANNIE v. CIVIL ACTION NO. M-83-245 CHARLES L. SCHLEIGH, in his official capacity as Principal: Clerk of the District Court for Washington County; NANCY E. MUELLER, in her official capacity as Clerk of the District Court for Howard County; and WILLIAM A. DORSEY,: in his official capacity as Administrative Clerk of the District Court of Baltimore City Filed: October 29, 1984. (595 F.Supp. 1535). MILLER, District Judge. MEMORANDUM AND ORDER On January 24, 1983, the plaintiffs, Esther V. Reigh, Ivery Mae Simpkins, David Michael Simpkins, and Lenora C. Dannie, filed -75a- this suit against Charles L. Schleigh, in his official capacity as Principal Clerk of the District Court for Washington County; Nancy E. Mueller, in her official capacity as Clerk of the District Court for Howard County, and William A. Dorsey, in his official capacity as Administrative Clerk of the District Court of Baltimore City. Plaintiffs allege that the defendants, in issuing orders of attach- ment pursuant to the post judgment procedures in Rules Fl through F5 of the Maryland Dis- trict Rules, have deprived the plaintiffs of property without due process of law by fail- ing (a) to cause a timely notice to be served upon the judgment debtor prior to, or immedi- ately subsequent to, service of the Order of Attachment upon the garnishee; (b) to serve notice which would inform the judgment debtor of the available state and federal exemptions and the procedure whereby he or she can obtain a hearing to contest the attachment; -76a- and (¢c) to require a hearing within a speci- fied number of days to resolve a contested attachment when requested by the judgment debtor. The plaintiffs prayed for a judgment declaring the then current Maryland District Rules governing post judgment attachment unconstitutional; the permanent enjoining of the issuance of post judgment orders for attachments by defendants until the Maryland District Rules are revised to require timely, adequate notice and timely opportunity for a hearing; an award of reasonable costs and attorney's fees; and such other and further relief as this court deems just and proper (Paper No. 2). The defendants filed a Motion to Dismiss asserting that (1) no case or controversy existed, and (2) the plaintiffs had failed to state a claim upon which relief could be granted (Paper No. 9). Thereafter, with the consent of counsel for defendants, plaintiffs -77a- amended their complaint asserting as an addi- tional cause of action, based on the same acts underlying the original complaint, a violation of the Supremacy Clause of the United States Constitution (Paper No. 12). On May 6, 1983, the plaintiffs filed a Motion for Summary Judgment, incorporating their memorandum in support of their Opposi- tion to the defendants' Motion to Dismiss and submitting affidavits of the plaintiffs (Paper Nos. 13-15, 22). The defendants filed a Cross Motion for Summary Judgment and a response to the plaintiffs' Motion for Sum- mary Judgment on July 1, 1983 (Paper No. 18), in which they reasserted contentions made in their Motion to Dismiss and also asserted that (1) the rule changes sought by the plaintiffs were then under consideration for adoption by the Maryland Court of Appeals, mooting this case, and (2) that the Maryland District Rules, as then currently codified, -78a- did not violate the plaintiffs' due process rights or the Supremacy Clause of the United States Constitution. The plaintiffs filed a response to defendants' Cross Motion (Paper No. 19). A hearing was held on the motions on December 2, 1983. I. Factual Background A. Plaintiff Reigh Plaintiff Esther Reigh is a seventy-year- old woman whose monthly income consists of $380.00 in Social Security and $43.14 from a pension from Fairchild Republic. Both checks are directly deposited into her account with the First National Bank of Maryland (FNB). On September 23, 1981, the C & P Tele- phone Company obtained a judgment against plaintiff Reigh in the District Court for Washington County. On July 6, 1982, an Order of Attachment on Judgment was issued by an rr agent of the defendant Schleigh and, on July 7, 1982, was served on FNB. FNB immediately -79a- froze the plaintiff's bank account on the same day and also mailed her notice informing her that it had been served with a writ of attachment and enclosing a copy of the Order for Attachment. On July 13, 1982, FNB mailed the plaintiff a copy of the garnishee's Con- fession of Assets. On or about July 15, 1982, plaintiff Reigh, acting pro se, asked the District Court in Washington County to exempt her account at FNB from attachment. Her request was granted on July 29, 1982. Plaintiff Reigh continues to be a judg- ment debtor to the C & P Telephone Company (Paper No. 2, @%] 11-15; Paper No. 15, Reigh Affidavit). B. Plaintiffs Ivery Mae and _ David Simpkins Plaintiffs Ivery Mae and David Simpkins are mother and son. Ivery Mae Simpson is 52 years old and disabled. Her sole source of monthly income is $421.50 from Social Secur- -80a- ity. Although married to a member of the merchant marine, she seldom receives any support from him and has received none from him since her bank account was attached in May of 1982. David Simpkins is 21 years old and attends Towson State University on a grant. His sole source of monthly income is $162.00 from Social Security. On August 11, 1982, a judgment was entered in the District Court for Howard County against these plaintiffs in favor of the American Express Company. On October 7, 1982, an agent of the defendant Mueller issued an Order for Attachment on the plain- tiffs' checking and savings accounts at Union Trust Company of Maryland (UT). The plain- tiffs learned of the attachment on or about October 21, 1982 when they received copies of two letters from UT to the attorneys for UT which revealed that the plaintiffs had four bank accounts, two checking and two savings, -8la- containing $426.20 with UT. A Garnishee's Confession of Assets was served on the plain- tiffs on October 27, 1982 by UT. “ On November 5, 1982, through counsel, Ivery Mae and David Simpkins filed a claim of exemption with the District Court for Howard County. On December 6, 1982, the exemption was granted. These plaintiffs continue to be judgment debtors to the American Express Company (Paper No. 2, @% 17-23; Paper No. 13, Simpkins Affidavit). S. Lenora C. Dannie Plaintiff Lenora C. Dannie is 26 years old and lives with three dependent chil- dren. Her sole source of income is $355.00 a month from the Aid to Families with Dependent Children (AFDC) program. On November 3, 1979, the Equitable Trust Bank obtained a judgment against the plain- tiff and on December 13, 1982, an Order for -82a- Attachment was issued. On December 13, 1982, her checking account containing $24.11 from AFDC at FNB was frozen. On December 14, 1982, FNB mailed a letter to the plaintiff, informing her that they had received the Order for Attachment. On December 17, 1982, a claim of exemp- tion was filed with the District Court of Baltimore City. The exemption was granted on December 29, 1982. Dannie continues to be a judgment debtor to the Equitable Trust Bank (Paper No. 2, 4% 25-30; Paper No. 13, Dannie Affidavit). II. Existence of a Case of Controversy The defendants assert that each plain- tiff, who was subjected to the garnishment procedures outlined in Maryland District Rules, F1-F5, has since had the attachments quashed pursuant to Rule G51, Maryland Dis- trict Rules. Therefore, since none of these plaintiffs have funds currently frozen under -83a- the Maryland Post Judgment Attachment sta- tute,- defendants contend iene is no case or controversy in existence as required by Article III of the United States Constitution and thet the case must be dismissed. Those who seek to invoke the jurisdiction of the federai courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging a case or controversy, Sierra Club v. Morton, 405 U.S. 727, 732 (1972); Flast v. Cohen, 392 U.S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421-25 (1969), for the courts are pre- cluded from issuing advisory opinions, Muskrat v. United States, 219 U.S. 346 (1911), and may only decide questions that can affect the rights of litigants in the case before them. North Carolina v. Rice, 404 U.S. 244, 246 (1971). Plaintiffs must demonstrate a “personal stake in the outcome" in order to ensure that concrete adverseness -84a- which sharpens ‘the presentations of the con- stitutional issues to be resolved. Baker v. Carr, 369 U.S. 186, 204 (1962). A plaintiff must show that he has sustained or is immedi- ately in danger of sustaining some direct injury as the result of the challenged offi- cial conduct, policy or statute and that the injury or threat thereof is real and immedi- ate, not conjectural or hypothetical. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Boyle v. Landry, 401 U.S. 77 (1971); Golden v. Zwickler, 294 U.S. 103, 109-10 (1969); Massachusetts v. Mellon, 262 U.S. 447 (1923). An actual controversy must exist at all stages of review. United States v. Munsingwear, Inc., 340 U.S. 36 (1950). The law, however, is not so rigid as to deny review in those instances in which the con- clusion of the adjudication of the claims cannot occur before the facts underlying the claim must necessarily change. See, e.g., -85a- Super Tire Engineering v. McCorkle, 416 U.S. 115 (1974) (strikes); Storer _v. Brown, 415 U.S. 724, 737 n.8 (1974) (state election laws); Roe v. Wade, 410 U.S. 113, 125 (1973); Doe v. Bolton, 410 U.S. 179 (1973) (preg- nancy). In Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980) (en banc), the Third Circuit considered a motion to dismiss a _ lawsuit brought by plaintiff Finberg contesting the validity of Pennsylvania's post judgment gar- nishment proceedings. During the pendency of the state court garnishment proceedings, the plaintiff filed suit in federal court under 42 U.S.C. § 1983, asserting violations of the Due Process and Supremacy Clauses of the United States Constitution. Prior to _ the completion of the federal proceedings, and five months after initiating her claims of exemption ‘in the state courts, the plaintiff recovered all of the money which had been -86a- attached. The defendants asserted that, because the plaintiff had had her money returned, she no longer had a personal stake in the outcome, and the case should be dis- missed as moot. Judge Seitz, writing for the court, con- cluded that the vase was one challenging "short term orders, capable of repetition, yet evading review," Southern Pacific Termi- nal Co., v. ICC, 219 U.S. 498 (1911), and, therefore, was not moot. He reasoned that the plaintiff had demonstrated a reasonable expectation that she would experience the reoccurrence of the activity: "In the present case, Mrs. Finberg does have some reason to fear that she will suffer another attachment of her bank accounts. She remains a judgment debtor. As the record indicates that she is an elderly widow with a modest income, this judgment could- remain unsatisfied for some time. Future efforts to execute the judgment are therefore likely. Sterling might repeat its attempt to gar- nish the accounts. For example, when new funds accumulate in the accounts, Ster- ling might find that the garnishment pro- cess is the most efficient way of deter- -87a- mining whether any of the new funds are exempt. We also cannot disregard the possibility that a successor to Ster- ling's interest, such as a collection agency, could make such an attempt. Furthermore, Mrs. Finberg's modest income and the difficulties that she had demonstrated in this case in meeting the demands of a creditor indicate that she may incur. another money judgment and suffer an attempted garnishment to exe- cute it." Finberg, 634 F.2d at 55-56. More recently, the- Fourth Circuit has considered a similar challenge and concluded that the case was not moot. Harris v. Bailey, 675 F.2d 614 (4th Cir. 1982). The plaintiff, a Social Security recipient, brought an action under 42 U.S.C. § 1983, alleging that the Virginia garnishment pro- cedure violated the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. § 407, exempting paid Social Security benefits from garnishment procedures. The district court dismissed her suit when her monies were returned prior to its adjudication. The Fourth Circuit reversed. Judge Ervin, speaking for the panel, found the Harris facts to be similar to those of a previous case before the Court of Appeals for the Fourth Circuit, Hammond vy. Powell, 462 F.2d 1053 (4th Cir. 1972). In Hammond, the plaintiff had challenged a South Carolina repossession statute on due process and equal protection grounds. Although the state repossession action was concluded before the federal case had been tried, the Fourth Circuit, after noting that "due to her poverty, appellant will likely again be sub- jected to the challenged statutory proce- dure," id. at 1055, and that the public interest was substantial, concluded that the case was not moot. In Harris, after concluding that the procedure there _ involved, like that of. Hammond, was of brief duration but one that is capable of repetition, yet evading review, -89a- and finding the reasoning in Finberg to be persuasive, the Fourth Circuit held that the general rule, which denies judicial review when the principal cause becomes moot, did not apply. See Roe, 410 U.S. 113; Moore v. Ogilvie, 394 U.S. 814 (1969). In the present case, the defendants point out that each of the above-discussed cases involved federal suits filed before’ the controversy had been settled and that the "capable of repetition" exception was used by those courts to conclude that the prior con- troversy was not mooted by the change in the plaintiffs' circumstances. In contrast, this case involves plaintiffs who filed suit after the Orders for Attachment had been quashed in state proceedings, a situation chien defen- dants contend means that there has never existed a case or controversy in this suit. The plaintiffs contend that the “capable of repetition" exception should apply to cases in which the plaintiffs reasonably expect to be subject to the challenged pro- cedures in the future, regardless of whether they are suffering actual injury at the time they file suit in federal court. In the Supreme Court's most recent case on the subject, it concluded that the dis- trict court was without jurisdiction to entertain a plaintiff's claim for injunctive relief due to the failure to satisfy the "case or controversy" requirement of Article III. Lyons, 461 U.S. 95. The Court's con- clusion that the plaintiff had no standing to challenge the Los Angeles police department's chokehold policy was based on the Court's determination that the nature of his claim was speculative in that it was unlikely that the plaintiff would suffer future injury from the use of chokeholds by police officers. For the same reason, the "capable of repeti- tion" doctrine was held not to apply. -9la- In reaching this conclusion, the Supreme Court reiterated the observations it had made in earlier cases. In O'Shea v. Littleton, 414 U.S. 488 (1974), particular members of the plaintiff class alleging the discrimina- tory enforcement of criminal law by state officials had actually suffered from the alleged unconstitutional practices. The Court observed that "[p]last exposure to illegal conduct does not in itself show a present case or controversy regarding injunc- tive relief . . . if unaccompanied by any continuing present adverse effects," although past wrongs were evidence bearing on "whether there is a real and immediate threat of repeated injury." Id. at 495-96. Since it was to be assumed that the plaintiffs in O'Shea would conduct themselves in a lawful _ manner, the possibility of threatened injury from the practice sought to be stopped was remote and a case or controversy did not -92a- EEE - — therefore exist. See also Asheroft vv. Mattis, 431 U.S. 171 (1977); Rizzo v. Goode, 423 U.S. 362 (1976); Golden, 394 U.S. 103. In an earlier case, Juidice v. Vail, 430 U.S. 327 (1977), although the issue was not raised by either party, the Supreme Court examined the standing of all appellees to determine whether the case or controversy requirement associated with Article III of the United States Constitution had been met, thereby entitling the appellees to an oppor- tunity to seek the injunction requested. The appellees sought to challenge the constitu- tionality of New York statutes authorizing a finding of contempt against judgment debtors. All but two of the appellees had, at the time the lawsuit commenced, already been impris- oned and released after payment of the court imposed fine. Id. at 331-32. Because the periods of incarceration had been served, the underlying judgment satisfied, or the fines -93a- paid by some of the appellees, the effect of the orders imposing those fines no longer existed. The Supreme Court concluded that no case or controversy existed as to those appellees. In reviewing the facts as to each of the appellees in Juidice v. Vail, the Court indicated that "the prospect of further con- tempt orders in the underlying action could have given Vail [the one appellee who had not satisfied the underlying judgment in addition to the court imposed fine for contempt] the requisite constitutional standing to seek to enjoin the contempt processes as unconstitu- tional." Id. at 333 n.9. Although the claims of this appellee were also dismissed because the complaint did "not allege the likelihood, or even the possibility, of future contempt orders," id., the Supreme Court’ indicated that standing may be present, under a plead- ing making appropriate allegations, despite -94a- the absence of pending state proceedings at the time the suit in federal court is com- menced challenging those proceedings. Article III's requirement of the exis- tence of a case or controversy is met by a demonstration of an injury or the threat of injury. Baker, 369 U.S. 186. The question of standing, whether at the outset or after litigation has begun, is the same: is there an injury or a threat of injury? The "“cap- able of repetition" exception to the mootness doctrine is the label applied to a court's determination that there continues to be a threat of injury so that standing still exists. As the Supreme Court opinions in Vail, O'Shea, Lyons, and Baker reveal, a threat of injury, if real, is sufficient to fulfill Article III's requirement of the existence of a case or controversy at the outset of the federal litigation. See -95a- Kolender v._Lawson. 461 U.S. 352 (1983).1/ The threat of injury was not present in O'Shea, Lyons, and Golden because the facts of those cases revealed that future injuries from challenged conduct were possibilities which were too speculative to ensure the "concrete adverseness" necessary for proper resolution of constitutional issues. Lyons, 461 U.S. 95. In Vail, the appellee's com- plaint did not even allege a future injury. The facts which gave rise to those determi- 1/ tn Kolender, the Supreme Court examined the constitutionality of a criminal statute which required persons who loiter or wander on the street to provide a "credible and reliable" identification and to account for their presence when so requested by a peace officer. Although the appellee, Lawson, had been detained or arrested on approximately 15 occasions, he was not being detained at the time he brought his civil action challenging the validity of the statute. The Court noted that the appellants had never challenged Lawson's standing to seek relief but went on to conclude that, in view of the number of previous stops, there was "a _ ‘credible threat' that Lawson might be detained again" and, therefore, found the existence of a case or controversy. 461 U.S. 352, , B53, 398 S.Ct. 1855, 1857 n.3. -96a- nations of speculative injury are vastly different from the situation in the present case. Although no longer’ suffering present injury from the challenged conduct, the plaintiffs in the case sub judice, like the one appellee in Vail, continue to be indebted on the underlying debts and have no assurance or indication that their present creditors will not again attempt collection of the debts. The plaintiffs in this case, in con- trast to the Vail appellee, have alleged in their complaint and affidavits2/ that their underlying judgment debts continue. They further alleged that, because of _ their poverty, all may be subjected to repeated — attachment of their bank accounts 24 2/ See Paper Nos. 13 (Simpkins and Dannie Affi its), 15 (Reigh Affidavit). 3/ The Second Amended Complaint of the plaintiffs reads in pertinent part: "a. Because of the fact that they are -97a- As the Supreme Court in Vail indicated, and the Fourth and Third Circuits in Harris and Finberg recognized, a plaintiff's poverty and continued status as a judgment debtor make very real the threat of injury from pro- cedures ‘disiguad to permit collection of a debt. Unlike the Lyons, O'Shea, or Ashcroft cases, where the facts indicated reoccurrence of the injury was unlikely, here the plain- tiffs, because of their poverty, will prob- ably be injured again by the challenged pro- cedures due to the actions of present or future creditors. For these reasons, the court concludes that these plaintiffs have standing to challenge Maryland's District judgment debtors and because of their poverty, all Plaintiffs may again be sub- jected to an attachment of their bank accounts or other-personal property under the procedures in question. b. The Plaintiffs' federal constitu- tional claims could not have been fully litigated in federal court before the state court proceedings ended and their bank accounts were released." Paper No. 20. -98a- Rules permitting post judgment orders of attachment to be _ issued. See Grimes Vv. Miller, 429 F. Supp. 1350, 1354 (M.D.N.C. 1977) 44 III. The Maryland District Rules In Maryland, the procedural rules for the governance of the District Courts of Maryland at the time this suit was filed were sepa- rately codified as the Maryland District Rules, Chapters F 100-700, 1100-1300. Chapter 100, Subtitles G & F contained the herein challenged procedures to be followed by a judgment creditor seeking to obtain an attachment on a judgment .24 Al In Grimes, the District Court concluded that a case or controversy existed when the plaintiff did not file suit challenging the constitutionality of the North Carolina post- judgment body execution statute until after he had been released from imprisonment. 5/~ The challenged rules provided as follows: Rule Fl. Service - Subsequent Procedure. -99a- Under the challenged Maryland District Where an attachment on a judgment shall have been issued pursuant to_this Subtitle, it shall be served pursuant to M.D.R. (G47) (Service of Writ - Garnishment) but no trial date shall be assigned at the time of issuing the writ. The procedure shall conform to the provisions of Section d of M.D.R. (G42) (Documents to Be Filed - Instructions to the Sheriff) and M.D.R. (G51) (Motion to Quash), M.D.R. (G52) (Appearance of Garnishee) M.D.R. (G56) (Interrogatories to Garnishee - Notice Failure to Answer), M.D.R. (G57) (Dissolution of Attachment), M.D.R. (G58) (Claimant of Property Attached), and M.D.R. (G60) (Sale of Attached Property). Rule F2. Appearance - Assignment _ for Trial. a. Nulla Bona - Reouest for Hearing - Dismissal. When a garnishee files a plea of nulla bona or a claim of total exemption, the plaintiff, within thirty days of the service of a copy of the plea or claim upon him, shall either dismiss the action or file a request for hearing. In the latter event the action shall be assigned for trial. In the absence of dismissal or request the court may assign the action for trial or dismiss the action without trial. b. Other Appearances - Trial Date. If a defendant, garnishee’ or claimant files an initial pleading, other than a plea of nulla bona or a claim of total exemption, the action shall be assigned for trial. ‘ Rule F3. Default - Judgment of Condem- -100a- Court garnishment rules in existence at the nation Absolute. If no defendant, garnishee, or claimant of the property attached by way of garnish- ment shall file his initial pleading within thirty days after service of the writ, the plaintiff may pursuant to M.D.R. 648 (De- fault) prove the amount of assets of the defendant in the hands of the garnishee sub- ject to attachment; thereupon, judgment of condemnation absolute shall be entered against the garnishee. Rule F4. Confession of Assets - Judgment of Condemnation Absolute. Upon the filing of a confession of assets by the garnishee, the court may enter a judgment of condemnation absolute for the assets confessed, provided, however, that no claimant files his initial pleading within thirty days after service of the writ. Rule F5. Execution. The court may award execution upon a judgment of condemnation absolute at any time. M.D.R. F6 concerned the post judgment garnishment of wages and is not relevant to the question presently before the court. The following rules were’ incorporated into the post judgment garnishment proce- dures: Rule G42. Documents to Be Filed. -10la- time this suit was instituted, in order for a d. Instructions to the Sheriff. Instructions to the sheriff as to the description and location of the property of the defendant to be attached. Rule G47. Service of Writ - Garnishment. a. Service on Garnishee. A writ of attachment by way of garnish- ment may be served upon a person having pro- perty or credits belonging to the defendant. b. Notice to Garnishee. A writ of attachment by way of garnish- ment shall comply substantially with section e of M.D.R. 103 (Process - Issuance Return) and shall notify each person upon whom it is served to file in writing a defense pursuant to M.D.R. (G52) (Appearance of Garnishee) within thirty days after service of the writ, showing cause why the property or credits so attached should not be condemned. Rule G51. Motion to Ouash. a. Procedure. A defendant or garnishee may file a motion within thirty days after service of the writ praying that the writ be quashed and set aside, and thereupon the court may order the sheriff to produce the writ and the pro- ceedings thereunder in court. b. Hearing. The court shall upon notice to the adverse party hear the motion to quash forthwith. Cc. Effect of Motion to Ouash _ Uoon -102a- writ of attachment by way of garnishment to Attachment. The motion to quash shall not prevent further proceedings until the court shall order the writ of attachment quashed. d. Attachment Quashed - Stay by Filing Bond. the writ of attachment is quashed and an appeal is taken, the writ of attachment shall :emain in force pending the decision on appeal, provided that within 10 days of the decision by the court a bond shall be given conditioned -upon the prosecution of such appeal with effect, or in default thereof to pay such costs and damages as the defendant or other person interested in such property or credits may incur or suffer by reason of such attachment and appeal. The amount of and the surety on such bond shall be deter- mined and approved by the court. Rule G52. Appearance of Garnishee. a. Pleas. The garnishee may file a pleading assert- ing on behalf of the defendant any defense which the defendant could assert, and also any defense on his own behalf. b. Confession of Assets - Payment Into Court. : The garnishee may confess such assets including money, as he has in his hands, and may pay into court the money in his hands to be awarded to the party having a legal right thereto. e. Confession of Assets - Proceedings. If the plaintiff shall claim a larger -103a- issue the judgment creditor filed instruc- tions to the sheriff as to the description and location of the debtor's property to be attached. M.D.R. Fl, G42d. The writ was then served on the garnishee, the person having property or credits belonging to the defendant. M.D.R. Fl, G47a. The writ of attachment was required to notify each person upon whom it was served, i.e., the garni- shee(s), to file in writing a defense, G52, within thirty days after service of the writ. amount than the assets confessed, the garni- shee shall be allowed the costs of the action and an attorney's fee to be fixed by the court, unless the plaintiff shall recover judgment against the garnishee in excess of the assets confessed. d. Plea of Nulla Bona. If upon a plea of nulla bona contested by the attaching creditor, judgment shall be entered for the garnishee, the plaintiff shall be adjudged to pay to the garnishee an attorney's fee to be fixed by the court and the costs of the action. The remaining six Rules, formerly incor- porated by reference into the post judgment proceedings, do not concern the issues pre- sented in the present case. -104a- If a claim of total exemption was filed by the garnishee, the creditor, within thirty days, must have either dismissed or requested a hearing. If a hearing was requested, the matter was set for trial. M.D.R. F2. If some other initial pleading by the garnishee or the debtor was filed, the case was also set for trial. M.D.R. F2b. Alternatively, the judgment debtor could obtain the dissolution of the writ by giving a bond in an amount equal to the attached property. M.D.R. Fl, G57. A final alternative under the _ former rules was for the garnishee or the debtor to file a motion to quash the writ. Such a motion must have been filed within thirty days of the service of the writ on the garni- shee. M.D.R. Fl, GSla. The court then, upon notice to the creditor, was required to hear the motion to quash "forthwith." M.D.R. Fl, G51(b). The writ of attachment by way of -105a- garnishment remained in effect until it was quashed. M.D.R. Fl, G5dle. If no defense was filed, within’ the thirty-day period after service of the writ, the judgment creditor could prove the amount of the debtor's assets in the hands of the garnishee, and a Judgment of Condemnation Absolute would thereupon be entered against the garnishee. M.D.R. F3. If the garnishee filed a Confession of Assets, the court could enter a Judgment of Condemnation Absolute. M.D.R. F4. Execution of Judgments of Condem- nation Absolute could be awarded by the court at any time. M.D.R. F5. At the December 2, 1983 hearing, this court observed that on October 21, 1983, the Maryland Court of Appeals had ordered the adoption of amendments to the Maryland Dis- trict Rules, Chapter 1100, Subtitle G and ‘Subtitle F. These changes were subsequently printed in the Maryland Register. Md. Admin. -106a- ee ee On eee ee Reg. Vol. 10, Issue 23 (Nov. 11, 1983).8/ S/ The Maryland District Rules regarding post judgment garnishment proceedures are set forth below as amended by the October 21, 1983 Order of the Maryland Court of Appeals. The matter contained in the brackets is deleted from the former Maryland District Rules. The matter which is underlined is any new material added by the October 21, 1983 amendments: CHAPTER 1100 - SPECIAL PROCEEDINGS SUBTITLE F - ATTACHMENT ON JUDGMENT - PROCEDURE AMEND Rule Fl to correct the rule refer- ences, as follows: M.D.R. Fl. Service - Subsequent Procedure. Where an attachment on a judgment shall have been issued pursuant to this Subtitle, it shall be served pursuant to M.D.R. G[47]50 (Service of Writ - Garnishment) but no trial date shall be assigned at the time of issuing the writ. The procedure shall conform to the provisions of [Section d] subsection b 4 of M.D.R. G[42]40 (Documents to Be Filed Instructions to the Sheriff) and M.D.R. G5l [(Motion to Quash)] (Release of Propert Dissolution of Attachment), M.D.R. GSa (Appearance of Garnishee), M.D.R. G56 (Inter- rogatories to Garnishee Notice - Failure to Answer), [M.D.R. G57 (Dissolution of Attach- ment),] M.D.R. G58 (Claimant of Property Attached), and M.D.R. G60 (Sale of Attached Property). The amended G Rules referenced in Fl of the M.D.R. post garnishment procedures are set forth below: -107a- The majority of these changes dealt with M.D.R. G40. [Against Whom] When Available - [M.D.R. G42.] Documents To Be filed a. Availability An attachment on original process or while an action is pending may issue against any property or credits, whether matured or unmatured, belonging to the debtor upon the application of [any person who has the right to become] a plaintiff [in an action in this State in any of the following instances:] who is entitled by statute to attachment before judgment. a. Nonresident Debtor. Where the debtor is a nonresident indi- vidual or if a corporation, where the cor- poration does not have a resident agent. b. Resident Defendant Evading Service. Where a resident individual defendant or an agent authorized to accept process for a cor- poration has acted to evade service. ec. Absconding Debtor. Where the debtor has absconded or is about to abscond from this State, or if an individual has removed, or is about to remove, from his place of abode in this State with intent to defraud his creditors. d. Fraud. Where the debtor is about to assign, dis- pose of, conceal or remove his property or some portion thereof from the State with intent to defraud his creditors, or where such debtor has done any of such acts or fraudulently contracted the debt or incurred the obligation respecting which the action is brought. e. Nonresident Heir and Devisee. Where an adult nonresident is entitled by descent or devise to any land or tenement -'08a- amendments to the G Rules, the _ statutory lying within this State, and the person from whom such land or tenement descended or by whom the same were devised was indebted to any person, an attachment may issue against the land or tenement held by descent or devise from the person so indebted.] Cross Reference: Code, Courts Article, §§ 3-302, 3- 303, 3-304, 3-305. b. Documents to be Filed. Attachment proceedings shall be commenced by filing with the clerk the following: [all. [Statement of Claim] Request for Writ. tatement of the plaintiff's claim) . request for an order directing the issuance of a writ of attachment. [b] 2. Affidavit An affidavit by the plaintiff or by some person on the plaintiff's behalf, setting forth facts upon which plaintiff claims he is entitled to the issuance of attachment [on original process] on one or more of the grounds in [M.D.R. G40 (Against Whom Avail- able)}] Code, Courts Article. § 3-303, and except in an action for unliquidated damages, that the debtor is bona fide indebted to the plaintiff in the amount claimed. In an action for unliquidated damages the facts recited in the statement of claim shall be verified by the plaintiff or someone on his behalf. [e]3. Statement of Claim and Documentary Evidence of Claim. When attachment on original process is requested, a statement of the plaintiff's claim and_— either the original, or sworn, certified or photostatic copies of all material papers or parts there- of which constitute the basis of the claim, unless the absence thereof is explained in -109a- procedures governing attachment before the affidavit. [d]4. Instructions to the Sheriff. Instructions to the sheriff as to the description and location of the property of the defendant to be attached. [e. Bond When Necessary ~ Amount. In an attachment on original process for fraud under section d of M.D.R. G40 (Against Whom Available), and in an action ex con- tractu for unliquidated damages, and in an action ex delicto under sections a and ec of M.D.R. G40 (Against Whom Available), a bond to the State shall be filed with such surety as may be approved by the clerk and condi- tioned upon the satisfaction of costs and such damages as may be awarded to such defen- dant or a claimant of the property attached. The amount of the bond shall be the sum alleged to be due from the defendant.] M.D.R. G[47]50. Service of Writ - Garnishment. a. Service on Garnishee. A writ of attachment by way of garnishment may be served upon a person having property or credits belonging to the defendant. b. Notice to Garnishee. A writ of attachment by way of garnish- ment shall comply substantially with section e of M.D.R. 103 (Process - Issuance - Return) and shall notify each person upon whom it is served to file in writing a defense pursuant to M.D.R. G52 (Appearance of Garnishee) within thirty days after service of the writ, showing cause why the property or credits so attached should not be condemned. [M.D.R. G51. Motion to Quash. -110a- judgment. Because, however, the post a. Procedure. A defendant or garnishee may file a motion within thirty days after service of the writ praying that the writ be quashed and set aside and thereupon the court may order the sheriff to produce the writ and the pro- ceedings thereunder in court. b. Hearing. The court shall upon notice to _ the adverse party hear the motion to quash forth- with. c. Effect of Motion to Quash Upon Attach- ment. The motion to quash shall not prevent further proceedings until the court shall order the writ of attachment quashed. d. Attachment Quashed - Stay by Filing Bond. If the writ of attachment is quashed and an appeal is taken, the writ of attachment shall remain in force pending the decision on appeal, provided that within 10 days of the decision by the trial court a bond shall be given conditioned upon the prosecution of such appeal with effect, or in default there- of to pay such costs and damages as_ the defendant or other person interested in such property or credits may incur or suffer by reason of such attachment and appeal. The amount of and the surety on such bond shall be determined by the court.] M.D.R. G{[57]51. Release oof Property - Dissolution of Attachment ~ e A defendant who has appeared may [dis- solve an attachment] obtain release of the attached property by giving bond in an amount equal to the value of the property as deter- -llla- judgment garnishment procedures contained in mined by the court, or in the amount of the plaintiff's claim, whichever is less, with such surety as may be approved by the clerk to satisfy any judgment that may be recov- ered. Upon motion of a defendant who has appeared, the court may release some or all of the attached property if it finds that (1) the claim has been dismissed or settled, (2) the plaintiff has failed to comply with the provisions of this Rule or an order of court regarding these proceedings, (3) property of sufficient value to satisfy the claim and probable costs will remain subject to_ the attachment after the release, or (4) _ the attachment of the specific property will cause undue hardship to the defendant and the defendant -has delivered to the sheriff or made available for. levy alternative property sufficient in value to satisfy the claim and probable costs. Upon motion of a defendant or garnishee, the court may release some or all of the attached property on the ground that_ the property its exempt or it may dissolve the attachment on the ground that the plaintiff is not entitled to attachment before judg- ment. If the motion is filed before the defendant's Notice of Intention to Defend is due pursuant to M.D.R. 302, its filing shall be treated as an appearance for that purpose only. A party desiring a hearing on a motion filed pursuant to this section shall _ so request in the motion or response and if requested, a hearing shall be held promptly. M.D.R. G56. Interrogatories to Garnishee - Notice - Failure to Answer. -l112a- Subtitle F incorporate by reference some of the G Rule procedures, Rule Fl was amended to incorporate the changes in the G Rule refer- ences. The only substantive change, as of October 21, 1983, in the post judgment gar- nishment procedures which are challenged in this suit is the change in Rule G5l. The former Rule G51, providing the procedure for filing a motion to quash the writ, was dele- Interrogatories may be served by _ the plaintiff upon the garnishee pursuant. to M.D.R. 417 (Discovery by Interrogatories to Party). They shall contain a notice to the garnishee that, unless answers are _ filed within thirty (30) days after service of the interrogatories [judgment may be entered against him in the full amount of the plain- tiff's claim] the garnishee may be held in contempt of court. If a garnishee shall fail to answer interrogatories, within the time allowed by section b of Rule 417 (Discovery by Interrogatories to Party), then upon proof of service of the interrogatories the court on motion [and notice] may enter [a judgment against the garnishee for the full amount of the plaintiff's claim] an order in compliance with Rule P4 treating the failure to answer as _a contempt and may require the garnishee to pay reasonable attorney's fees and costs. -ll3a- ted to accommodate the adoption of a new Rule G51, a comprehensive rule covering release of property and dissolution of attachment. The specific change in the procedures challenged by the plaintiffs and contained in the new Rule G51, as of October 21, 1983, was that now a hearing on a motion to release property or to dissolve the attachment pursuant to Rule G51 must be requested by a party, and once requested, the hearing shall be held "promptly," rather than "forthwith," as required by the former Rule G5l(b). The remaining procedures or lack thereof chal- lenged by the plaintiffs remained unchanged. in the October 21, 1983 change in the rules. IV. Latest Changes _in_the Maryland District Rules In their motions before this court, the defendants asserted that the changes in the Maryland District Rules that the plaintiffs sought were then currently under considera- tion and were expected to be put into effect -l1l4a- in the next several months after the Decem- ber, i983 hearing. The defendants referred to the Tentative Draft of the Revised Mary- land Rules of Procedure, published in Novem- ber, 1982, by the Rules Committee of the Judiciary of Maryland. (Preface, Tentative Draft). As the plaintiffs accurately pointed out, the proposed rules contained in the Tentative Draft revised only the procedures of the Cir- cuit Courts of Maryland and did not affect or attempt to alter the District Rules which contain the procedures challenged in_ the present case. re At the December 2, 1983 hearing, however, the defendants submitted to the court a copy of the proposed Eighty-Eighth Report of the Standing Committee on Rules of Practice & Procedure. In that report, which was later submitted to the Court of Appeals on December 9, 1983, the Rules Committee proposed amend- -ll5a- ments to the Maryland District Rules. (Defendants' Exhibit No. 4). Md. Admin. Reg. Vol. 10, Issue 25 (Dec. 9, 1983). Three specific proposed rules were ealied to the court's attention, 3-311, 3-643, and 3-645.2/ 1/ The pertinent proposed rules submitted by the Rules Committee are set forth below: Rule 3-311. MOTIONS (a) Generally An application to the court for an order shall be by motion which, uniess made during a hearing or trial, shall be made in writing, and shall set forth the relief or order sought. (b) Statement of Grounds A written motion and any response to a motion shall state with particularity the grounds. (c) Hearing - Motions for New Trial or to Amend the Judgment When a motion is filed pursuant to Rule 3-533 or 3-534, the court shall deter- mine in each case whether a hearing will be held, but it may not grant the motion without a hearing. (d) Hearing - Other Motions A party desiring a hearing on a motion, other than a motion filed pursuant to Rule 3-533 or 3-534, shall file a timely written request. The request of the moving party shall be included in the motion under -116a- These proposed changes to the Maryland the heading "Request for Hearing," and the request of a party served with a motion shall be made by filing a “Request for Hearing" within five days after service. Upon a timely request, a hearing shall be held except as provided in Rule 3-421(g). The court may hear and decide the motion before or at trial. If no hearing is requested, the court may decide the motion without a hearing at any time. Rule 3-643. RELEASE OF PROPERTY FROM LEVY (a) Upon Satisfaction of Judgment Property is released from a levy when the judgment has been entered as satis- fied and the costs of the enforcement pro- ceedings have been paid. (b) Upon Posting Bond The judgment debtor may also obtain release of property from a levy by filing a bond in an amount sufficient to satisfy the judgment and enforcement costs. (c) Upon Motion of Judgment Debtor Upon motion of the judgment debtor, the court may release some or all of the pro- perty from a levy if it finds that (1) the judgment has been vacated, has expired, or has been satisfied, (2) the property is exempt from levy, (3) the judgment creditor has failed to comply with these rules or an order of court regarding the enforcement proceedings, (4) property sufficient in value to satisfy the judgment and enforcement costs will remain under the levy after the release, (5) the levy upon the specific property will cause undue hardship to the judgment debtor -117a- District Rules®/ were later adopted by the and the judgment debtor has delivered to the sheriff or made available for levy alterna- tive property sufficient in value to satisfy the judgment and enforcement costs, or (6) the levy has existed for 120 days without sale of the property, unless the court for good cause extends the time. The motion and any response to the motion may be accompanied by a request for court review of the sheriff's appraisal made at the time of the levy. (d) Upon Election of Exemption by Judg- ment Debtor By motion filed within 30 days after a levy, the judgment debtor may elect to exempt from execution of the judgment selec- ted items of property or cash not exceeding in amount the cumulative value permitted by law. The motion and any response to the motion may be accompanied by a request for court review of the sheriff's appraisal made at the time of the levy. The court shall release from the levy items of cash or pro- perty selected by the debtor to the extent required by law. (e) Upon Claim of a Third Person A person other than the judgment debtor who claims an interest in property under levy may file a motion requesting that the property be released. The motion shall be served on the judgment creditor and, if reasonably feasible, on the judgment debtor. If the judgment debtor is not served and does not voluntarily appear, the claimant shall file an affidavit showing that reasonable efforts have been made to ascertain. the whereabouts of the judgment debtor and to -118a- Maryland Court of Appeals on April 6, 1984, provide the judgment debtor with notice of the motion. The court may require further attempts to notify the judgment debtor. The judgment creditor or the judgment debtor may file a response to the motion. Rule 3-645. GARNISHMENT OF PROPERTY - GENERALLY (a) Availability This Rule governs garnishment of any property of the judgment debtor, other than wages [subject to Rule 3-646] and a partner- ship interest subject to a charging order, in the hands of a third person for the purpose of satisfying a money judgment. Property includes any debt owed to the judgment debtor, whether immediately payable, un- matured, or contingent. (b) Issuance of Writ The judgment creditor may obtain issuance of a writ of garnishment by filing in the same action in which the judgment was entered a request that contains (1) the cap- tion of the case, (2) the amount owed under the judgment, (3) the name and last known address of the judgment debtor, and (4) the name and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1157%3A2. Public record. Not legal advice.