Date of Decision:
March 15, 2007
Whether Debtors could claim accrued but unpaid wages not subject to garnishment exempt under S.D.C.L. § 43-45-4?
Yes. S.D.C.L. §§ 21-18-53 and 43-45-14 are clear, certain, and unambiguous, and according to their terms, those sections would prevent a debtor from claiming his wages exempt under § 43-45-4 or any other statute other than S.D.C.L. §§ 21-18-51 and -52. However, a literal interpretation of §§ 21-18-53 and 43-45-14 would lead to absurd results. For example, a debtor who was being garnished could protect a specified portion of his accrued but unpaid wages – under §§ 21-18-51 or -52 – but a debtor who was not being garnished could not protect any portion of his accrued but unpaid wages. Similarly, a debtor who received his paycheck the day before filing a bankruptcy petition and deposited his paycheck in his checking account could – assuming he had not maxed out his exemptions under § 43-45-4 – claim those funds exempt, but a debtor who received his paycheck the day after filing a bankruptcy petition could not. The Court must presume the South Dakota legislature did not intend those results. In addition, notwithstanding §§ 21-18-53 and 43-45-14, a debtor may in fact protect his wages outside bankruptcy under at least two other statutes, S.D.C.L. §§ 15-20-12 and 21-19-17. Those sections – even more clearly than § 43-45-4 – appear to be in direct conflict with §§ 21-18-53 and 43-45-14. However, that conflict is readily resolved if §§ 21-18-53 and 43-45-14 are interpreted to apply only to wages subject to garnishment, so that a debtor may not use § 43-45-4 to exempt any wages he was not able to exempt under §§ 21-18-51 or -52. For these reasons, neither § 21-18-53 nor § 43-45-14 bars a debtor from exempting under § 43-45-4 accrued but unpaid wages not subject to garnishment, to the extent permitted by that section. In issuing its ruling, the Court also noted the recent amendment to S.D.C.L. § 43-45-14 might well be unconstitutional, inasmuch as it appears to create different exemptions for nonbankruptcy and bankruptcy debtors, see In re Wallace, 347 B.R. 626 (Bankr. W.D. Mich. 2006), and suggested counsel might want to visit with the Bar’s Debtor/Creditor Committee about the propriety of that amendment before March 26, 2007, veto day for the 2007 legislature. Please note, nothing in the opinion should be construed to say wages may be claimed exempt under S.D.C.L. § 15-20-12. See In re Roxanne R. Swiontek, Bankr. No. 05-10146, slip op. (Bankr. D.S.D. Oct. 31, 2005).