March 21, 1996
Tim Hovis Staff Attorney Legislative Research Division 545 Legislative Office Building 300 North Salisbury Street Raleigh, N.C. 27603-5925
RE: Advisory Opinion; Exceptions to Statutory Exemptions for Execution of Judgment on Criminal Restitution Orders; N.C.G.S. §1C-1601; 15A-1343(d).
Dear Mr. Hovis:
This is in response to your memorandum of March 6, 1996 requesting an advisory opinion concerning the constitutionality of waiving the statutory exemptions contained in G.S. §1C1601, thereby making them inapplicable to the execution of criminal restitution orders enforced as civil judgments. For the reasons which follow, it is our opinion that creating an exception to the exemptions for criminal defendants may be constitutionally permissible.
N.C.G.S. §1C-1601 designates the property of a debtor that is exempt from claims of creditors (a), subject to waiver (c), and subject to exceptions (e). The excepted claims include claims of the state and federal government; liens of laborers; mechanics liens; other statutory liens; claims for payment of obligations contracted for the purchase of real property; claims for contractual security interests; and claims for child support or alimony. The North Carolina Courts Commission would like to consider adding to this statutory list of exceptions, claims for criminal restitution orders docketed as civil judgments pursuant to N.C.G.S. 15A-1343(d). We have received a copy of House Bill 267, proposed legislation recommended by the Courts Commission which authorizes the enforcement of an order for restitution in a criminal case in the same manner as a civil judgment. Based on a review of state and federal cases, we believe House Bill 267 is constitutional.
Alexander v. Johnson, 742 F.2d 117, 123-124 4th Cir. (1984), reinforces the propriety of a statute such as HB 267, which would allow court-ordered restitution of a criminal defendant to be docketed as a civil judgment. It also provides the strongest rationale for allowing our legislature to structure a restitution program to suit the needs of the state.
North Carolina [is not] barred from structuring a program to collect the amount it is owed from a financially-able defendant through reasonable and fairly administered procedures. The state’s initiatives in this area naturally must be narrowly drawn to avoid either chilling the indigent’s exercise of the right to counsel, or creating discriminating terms of repayment based solely on the defendant’s poverty. Beyond these threshold requirements, however, the State has wide latitude to shape its attorneys fees recoupment or restitution program along the lines it deems most appropriate for achieving lawful state objectives. Id. at 123-124. (emphasis added.)
However, this Commission should be aware of James v. Strange, 407 U.S. 128 (1972), where the United States Supreme Court declared a Kansas recoupment statute unconstitutional, as violative of the equal protection clause, because the defendants were deprived of protective exemptions
allowed to other civil judgment debtors. The Court therein indicated
[T]he State’s claim to reimbursement may take precedence, under appropriate circumstances,
over claims of private creditors. . . This does not mean, however, that a State may impose unduly
harsh or discriminatory terms merely because the obligation is to the public treasury rather than
to a private creditor. The State itself in the statute before us analogizes the judgment lien against
the indigent defendant to other "judgments under the code of civil procedure". But the statute
then strips the indigent defendant of the very exemptions designed primarily to benefit debtors of
low and marginal incomes. Id. 407 U.S. at 138-139.
This is an issue of first impression in the state of North Carolina. James v. Strange is the only
case we have found which directly addresses the issue of exceptions to exemptions as applied to
criminal defendants, and that case was limited to the payment of attorneys fees. Therefore, even
though James may raise a constitutional issue as to attorneys fees, it does not necessarily mean
that a Court would invalidate a statute which grants exceptions to criminal defendants ordered to
pay restitution.
We trust that this adequately addresses the issue raised in your request. If we can assist you
further, please do not hesitate to contact us.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Wanda G. Bryant
Senior Deputy Attorney General Citizens’ Rights Division