Opinion Information Sheet

			

Anthis, et al. v. Copland

                                         No. 85230-8

       Stephens J. (dissenting) -- This case concerns RCW 41.26.053, the 

antigarnishment provision of the Washington Law Enforcement Officers'                       and 

Firefighters' Retirement System Act (LEOFF or Act).  The question presented is 

whether LEOFF benefits lose their exempt status under RCW 41.26.053 upon being 

deposited into the beneficiary's personal bank account.  The majority holds the 

exempt status evaporates the moment the benefit is paid to the beneficiary.  This 

holding frustrates the entire purpose and policy of the Act.  The Act is designed to 

safeguard a degree of economic security for the pensioner and dependent family 

members.  The antigarnishment provision is critical to achieving the legislative 

purpose.  Because the majority places a construction upon RCW 41.26.053 that 

runs contrary to the logic, letter, and spirit of the Act, I respectfully dissent.

                GOVERNING PRINCIPLES OF INTERPRETATION

       Our paramount duty in interpreting a statute is to ascertain and give effect to 

the intent of the legislature.  State v. Johnson, 119 Wn.2d 167, 172, 829 P.2d 1082 

(1992) (citing City of Yakima v. Int'l Ass'n of Fire Fighters, AFL-CIO, Local 469,  

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

117 Wn.2d 655, 669, 818 P.2d 1076 (1991)).  We interpret each statute in light of 

the entire statutory scheme.  Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 

P.3d 228 (2007) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 

1, 9-12, 43 P.3d 4 (2002)).  And where the legislature has prefaced an enactment 

with a declaration of purpose, the declaration serves "as an important guide in 

determining the intended effect of the operative sections."  Hearst Corp. v. Hoppe, 

90 Wn.2d 123, 128, 580 P.2d 246 (1978) (citing Hartman v. Wash. State Game 

Comm'n, 85 Wn.2d 176, 179, 532 P.2d 614 (1975)).  If an examination of the 

operative section at issue leaves "alternative interpretations . . . possible, the one 

that best advances the overall legislative purpose should be adopted."  Anderson v. 

Morris, 87 Wn.2d 706, 716, 558 P.2d 155 (1976).

       Proper interpretation of RCW 41.26.053 begins with the rule "that pension 

legislation must be liberally construed most strongly in favor of the beneficiaries."  

Hanson v. City of Seattle, 80 Wn.2d 242, 247, 493 P.2d 775 (1972).  Similarly, 

exemption statutes require liberal construction so their underlying intent and purpose 

may be given effect.  In re Elliott, 74 Wn.2d 600, 620, 446 P.2d 347 (1968) (citing 

N. Sav. & Loan Ass'n v. Kneisley, 193 Wash. 372, 76 P.2d 297 (1938)).  Liberal 

construction in favor of pension beneficiaries is particularly important here because 

we are dealing with an exemption statute contained in pension legislation.

                                              -2- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

                             A TEXTUAL EXAMINATION

       The antigarnishment provision, RCW 41.26.053(1), states:

       Subject to subsections (2) and (3) of this section, the right of a person to a 
       retirement allowance, disability allowance, or death benefit, to the return of 
       accumulated contributions, the retirement, disability or death allowance 
       itself, any optional benefit, any other right accrued or accruing to any 
       person under the provisions of this chapter, and the moneys in the fund 
       created under this chapter, are hereby exempt from any state, county, 
       municipal, or other local tax and shall not be subject to execution, 
       garnishment, attachment, the operation of bankruptcy or insolvency laws, or 
       any other process of law whatsoever, and shall be unassignable.

The statute is written in broad terms.  The text shows the legislature exempted both 

pension money in the fund and pension money after distribution from any process of 

law whatsoever.

       Germane to this case, the statute exempts (1) "the right of a person to a 

retirement allowance," (2)  "the retirement . . . allowance itself," (3)  "and the 

moneys in the fund created under [the Act]." RCW 41.26.053(1) (emphasis added).  

This last clause -- "and moneys in the fund" -- refers to pension money not yet 

received by a beneficiary.  By including this clause, the legislature distinguished 

pension money remaining "in the fund," and therefore not yet received, from the 

other exempt items articulated in the statute.  In light of this legislative distinction, 

the phrases "right . . . to a retirement allowance" and "the retirement . . . allowance 

itself," must be read as referring not only to undistributed pension money but also to 

pension money received by the beneficiary.  See Whatcom County v. City of 

Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996) ("Statutes must be 

interpreted and construed so that all the language used is given effect, with no 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

portion rendered meaningless or superfluous.").

       This reading is bolstered by the legislature's use of the word "allowance"

when referring to the retirement benefit.  The word allowance means "[a] share or 

portion, esp. of money that is assigned or granted." Black's Law Dictionary 89 (8th 

ed. 2009).  Because words used in a statute are given their ordinary meaning, State 

v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991), the word "allowance" in RCW 

41.26.053(1) can mean nothing less than "a share of money."              Thus, the legislature 

exempted the share of money itself, whether or not it has been received by the 

beneficiary.  Indeed, to read the statute otherwise, as the majority does, flouts well-

established principles because it makes most of the exemptions enumerated in the 

statute redundant.  See Whatcom County, 128 Wn.2d at 546 ("Statutes must be 

interpreted and construed so that all the language used is given effect, with no 

portion rendered meaningless or superfluous.").  The pension money itself is what 

the statute shields from any legal process whatsoever.  The money is protected both 

while it is in government hands and after it has been disbursed to the pensioner.  

This reading of the statute best effectuates the policies and purposes of the Act as a 

whole.

                   THE OVERARCHING PURPOSE OF THE ACT

       The overarching legislative purpose of the Act is found at RCW 41.26.020:

       The purpose of this chapter is to provide for an actuarial reserve system for 
       the payment of death, disability, and retirement benefits to law enforcement 
       officers and firefighters, and to beneficiaries of such employees, thereby 
       enabling such employees to provide for themselves and their dependents in 
       case of disability or death, and effecting a system of retirement from active 

                                              -4- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

       duty.

(Emphasis added.)  

       By these words, the legislature made plain that the principal objective of the 

Act is to ensure the pensioner and dependent family members are provided for when 

the pensioner enters retirement or his or her years of productivity are cut short by 

disability or death.  The declared policy serves as the key to ascertaining the 

meaning of the antigarnishment provision.  By shielding the pensioner and 

dependents from claims of creditors, RCW 41.26.053(1) operates as a critical 

mechanism to achieving the overall legislative purpose.

       Courts have long recognized the purpose of safeguarding a pensioner's family 

from want as the animating force behind state antigarnishment statutes and have 

interpreted them in this light.  So powerful is the policy, a considerable majority of 

courts have carved out a common law exception to pension antigarnishment statutes 

to accommodate claims for child support and spousal maintenance.  See, e.g., Faus 

v. Faus, 319 N.W.2d 408 (Minn. 1982); Fischer v. Fischer, 13 N.J. 162, 98 A.2d 

568 (1953); Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131 (1973); Collida v. 

Collida, 546 S.W.2d 708 (Tex. Civ. App. 1977); Saunders v. Saunders, 243 Wis. 

94, 9 N.W.2d 629 (1943); Hodson v. New York City Employees' Retirement Sys., 

243 A.D. 480, 278 N.Y.S. 16 (1935); Courtney v. Courtney, 251 Wis. 443, 29 

N.W.2d 759 (1947).  Indeed, "[e]ven where the exemption provision is absolute on 

its face, it has been held that exemptions contained in pension statutes are 

inapplicable to a claim for alimony or child support."  Faus, 319 N.W.2d at 411.  As 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

one court has explained:

              Underlying these decisions is the reasoning that the funds involved, 
       pension funds and disability insurance, are created for the protection, not 
       only of the employee or insured, but for the protection of his family.  
       Similarly, the purpose of exemptions is to relieve the person exempted from 
       the pressure of claims that are hostile to his and his dependents' essential 
       needs.

Courtney, 29 N.W.2d at 762.  

       These courts have chosen to animate the spirit of the statute, understood from 

its context, despite any discerned inartfulness in its drafting.  See, e.g., Mahone, 517 

P.2d at 134 ("we have applied the principle that a statute is not to be given an 

arbitrary construction, according to the strict letter, but one that will advance the 

sense and meaning fairly deducible from the context").  "The spirit of a statute gives 

character and meaning to particular terms.  The reason of the law, i.e., the motive 

which led to the making of it, is one of the most certain means of establishing the 

true sense."  Fisher, 98 A.2d at 571.

       The overriding policy of the Act is reflected in our own legislature's decision 

to except maintenance and child support from the scope of the antigarnishment 

provision.  See RCW 41.26.053(1)-(3).  By excepting such claims, the legislature 

made clear that RCW 41.26.053(1) is not intended to function at odds with the 

declared purpose of the Act but operates consonant with the spirit of the Act, as set 

forth in the legislative declaration.  If the statute functions to jeopardize the needs of 

the petitioner's dependents -- as the majority allows -- the purpose of the Act is 

undermined.

                                              -6- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

       In holding that Walter Copland's pension money, though exempt from the 

reach of creditors while in the hands of the government, becomes subject to seizure 

the moment it is paid, the majority reduces the Act's protection to a meaningless 

formality, easily circumvented by creditors.  Courts have long recognized the 

problem with such an interpretation.  In Surace v. Danna, 248 N.Y. 18, 161 N.E. 

315 (1928), New York's court of last resort addressed the question whether a state 

antigarnishment statute, which exempted "benefits due under this chapter,"

continued to exempt the benefits after being paid to the beneficiary.  Speaking for 

the court, Justice Cardozo noted:

              By concession the moneys due under the award would have been 
       exempt from the pursuit of creditors before they reached the judgment 
       debtor.  The argument is, however, that they became subject to seizure the 
       instant they were paid.  If this is so, the exemption is next to futile.  All that 
       a creditor has to do is to obtain an order in supplementary proceedings, 
       containing, like the order in this proceeding, the usual provision restraining 
       the judgment debtor from making any transfer or disposition of his property 
       until further directions in the premises.  Then, as the installments of an 
       award are paid, the injunction will tie them up.  They may be appropriated 
       to the last dollar in satisfaction of an ancient debt.  They will no longer be a 
       fund for the support of the indigent and helpless.
              So narrow a construction thwarts the purpose of the statute.

Id. at 20.

       It is telling that the majority is completely silent as to LEOFF's declaration of 

purpose.  Ignoring the purpose of the Act, the majority incorrectly assumes that 

RCW 41.26.053(1) embodies a legislative intent to protect only the retirement fund, 

specifically those who manage the retirement system, from the administrative 

burdens of execution and garnishment.  While this is no doubt part of what the 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

statute accomplishes, to conclude it does nothing more puts the majority at odds 

with the broad and clearly expressed declaration set forth in RCW 41.26.020.  The 

legislature made clear the ultimate aim of the Act is to enable law enforcement 

officers and firefighters to provide for themselves and their dependents, not to ease 

administrative burdens.  We must give effect to the intent of the legislature by 

liberally construing RCW 41.26.053(1) to further the declared policy.  While the 

majority gives lip service to liberal construction, the rule it announces in fact strictly

construes the LEOFF exemption statute.  See majority at 14 ("We hold that absent 

express statutory language to the contrary, Copland's LEOFF pension is not exempt 

from garnishment once it has been deposited into his personal account.").

                                         CASE LAW

       The majority believes the legislature needed to use language such as that 

found in certain federal antigarnishment statutes if it wanted to protect retirement 

funds from creditors.  See majority at 14.  In addition to disregarding liberal 

construction, this holding is founded on an erroneous reading of cases that have 

examined the issue.  According to the majority, there exists a general consensus 

among courts that "some unambiguous reference to money actually paid to or in the 

possession of the pensioner is necessary in order to find that pension funds retain 

their exempt status postdistribution."  Id. at 9.  Not true.  Decisions addressing the 

issue do not turn on the incantation of magic words, but rather ground their analysis 

in legislative intent reflected in the breadth of the statute.

       The majority observes that "in the federal courts, the language in the Social 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

Security Act prohibiting garnishment of '"the moneys paid or payable"' to a 

beneficiary has been held protected even after deposit."  Id. (quoting Philpott v. 

Essex County Welfare Bd., 409 U.S. 413, 415-17, 93 S. Ct. 590, 34 L. Ed. 2d 608 

(1973) (quoting Social Security Act of 1935, ch. 531, § 208, 49 Stat. 620, 625 

(1935))).  It also notes that "[s]imilarly, language in the World War Veterans' Act

of 1924 [also known as "Veterans' Benefits Act"] that funds were exempt '"either 

before or after receipt by the beneficiary"' has been held to protect funds post-

distribution."  Id. (footnote omitted) (quoting Porter v. Aetna Cas. & Sur. Co., 370 

U.S. 159, 160-61, 82 S. Ct. 1231, 8 L. Ed. 2d 407 (1962) (quoting World War 

Veterans' Act of 1924, ch. 510, § 3, 49 Stat. 607, 609 (1935))).  The majority then 

contrasts the Social Security Act and the Veterans'                 Benefits Act      with the 

antialienation statute of the Employee Retirement Income Security Act (ERISA), 29 

U.S.C. § 1056(d)(1), which courts have largely held does not protect funds 

postdistribution.  Id. at 9-10.

       The majority, however, fails to note the unique narrowness of ERISA's 

language as compared to other acts.  Even the one cited federal decision that 

supports the majority's view recognizes the language of ERISA's antialienation 

statute was not "written broadly," as are other federal provisions, but clearly 

"governs only the plan itself."  Hoult v. Hoult, 373 F.3d 47, 54-55 (1st Cir. 2004).  

The majority gleans the wrong rule from these cases.  The general rule is not that 

"some unambiguous reference to money actually paid to or in the possession of the 

pensioner is necessary in order to find that pension funds retain their exempt status 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

postdistribution." Majority at 9.  Instead, courts have determined that pension funds 

retain their exempt status postdistribution when the language of the statute shows 

the exempt status attaches to the benefit itself as opposed to the benefit only while 

held by the government.  See, e.g., Waggoner v. Games Sales Co., 288 Ark. 179, 

702 S.W.2d 808, 809 (1986); Philpott, 409 U.S. at 415-17.

       This principle is illuminated by examining what the majority overlooks.  

Although it discusses the antigarnishment statutes of the Social Security Act, the 

Veterans'    Benefits Act, and ERISA, the majority fails to mention the 

antigarnishment statutes of other similar federal schemes.  The Civil Service 

Retirement Act, 5 U.S.C. § 8346(a), for example, provides that "[t]he  money 

mentioned  by this subchapter is not assignable, either in law or equity, . . . or 

subject to execution, levy, attachment, garnishment, or other legal process."  

Though § 8346(a) does not contain the explicit language found in the 

antigarnishment statutes of the Social Security Act and the Veterans' Benefits Act, a 

majority of courts recognize its protections continue to apply even after the money 

is received by the beneficiary.  See State ex rel. Nixon v. McClure, 969 S.W.2d 

801, 806 (Mo. Ct. App. 1998) ("A majority of courts considering the issue hold that 

the protection afforded by § 8346(a) continues to apply to the funds even after they 

are in possession of the payee."); Tom v. First Am. Credit Union, 151 F.3d 1289, 

1293-94 (10th Cir. 1998) ("Although not as precisely drafted as [42 U.S.C.] § 407, 

the broad language of § 8346 offers no hint that its protections are any narrower 

than those afforded to Social Security payments or that Congress intended to treat 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

future payments any differently than payments already received."); In re Anderson, 

410 B.R. 289 (Bankr. W.D. Mo. 2009) (same);  Waggoner,  702 S.W.2d at 809 

(noting that only "[t]wo courts have reached the opposite result").

       These courts properly focus on the breadth of an antialienation provision, not 

whether its wording explicitly mentions benefits postdistribution.  The reasoning of 

the Waggoner court is instructive:

              By this clearly expressed provision Congress makes the exemption 
       applicable to "the money mentioned in this subchapter."        The statute, unlike 
       some others, does not base the exemption upon whether the government 
       holds the money. Under this broad grant of immunity, the exemption attached 
       to the money itself and, when the money was paid to the recipient, it was free 
       from garnishment by a judgment creditor. 

Id.

       The United States Supreme Court's decision in Hisquierdo v. Hisquierdo, 

439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979), endorses a similar approach 

with respect to the Railroad Retirement Act's antigarnishment provision, 45 U.S.C. 

§ 231m.  This statute prohibits annuity funds from being subject to "garnishment, 

attachment, or other legal process under any circumstances whatsoever." 45 U.S.C. 

§ 231m.  The Supreme Court made clear the provision continues in force even after 

the funds are received by the beneficiary.  Hisquierdo, 439 U.S. at 583.  The court 

noted that any other holding would "run[] contrary to the language and purpose of § 

231m and would mechanically deprive petitioner of a portion of the benefit 

Congress in § 231d(c)(3), indicated was designed for him alone."  Id.  Speaking to 

the breadth of the statute, the Court observed that "[s]ection 231m goes far beyond 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

garnishment.  It states that the annuity shall not be subject to any 'legal process 

under any circumstances whatsoever . . . .'"  Id. at 586.

       The majority also cites a handful of decisions interpreting antigarnishment 

provisions of other states for the proposition that explicit language is required to 

exempt a benefit after it has been received by the beneficiary.  Yet, even some of 

those cases lend support to the view that proper analysis hinges not so much on 

whether there exists specific language proscribing garnishment postdistribution, but 

on whether the language of the statute is sufficiently comprehensive to evidence an 

intent to protect the money both pre- and postdistribution.  See, e.g., Whitwood, Inc. 

v. S. Blvd. Prop. Mgmt. Co., 265 Mich. App. 651, 701 N.W.2d 747, 749 (2005) 

(noting that the language of the state antigarnishment statute at issue was "less 

comprehensive" than that contained in the federal Social Security Act because the 

state statute protected only the "retiree's right to a benefit"); In re Lawrence, 219 

B.R. 786, 792-93 (Bankr. E.D. Tenn. 1998) (noting the statute at issue was 

"fundamentally different from . . . other Tennessee exemption statutes" because it 

did "not contain similar broad language," but "merely limit[ed] . . . the amount of 

disposable earnings that may be subjected to garnishment").

       In re Miller, 435 B.R. 561 (Bankr. N.D. Ind. 2010), provides perhaps the 

strongest support for the majority's position.  But there, the court characterized the 

issue as whether Indiana's exemption statute was "broad enough" to protect the 

pension funds after they came into the possession of the beneficiary.  Id. at 563.  

The court held it was not because the property protected under the statute was only 

                                              -12- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

the "interest . . . that the debtor has in a retirement plan or fund."  Id. at 564

(alteration in original).  The scope of the state exemption statute was too narrow.  

By its clear language, the statute was limited to money "in a retirement plan."  Id.

       The Miller court did note that "the legislature can only grant exemptions in 

proceeds by explicitly stating that the proceeds are exempt."  Id. at 567 n.6.  But, 

this observation must be read in light of Indiana's particular history of interpreting 

government exemption statutes.  Courts in Indiana long ago established the common 

law rule that government exemption statutes do not protect money postdistribution.  

See id.; Sohl v. Wainwright Trust Co., 76 Ind. App. 198, 130 N.E. 282 (1921); 

Faurote v. Carr, 108 Ind. 123, 9 N.E. 350 (1886).  It appears the rule was rooted in 

cases interpreting a 19th century federal exemption statute, U.S. Rev. Stat. § 4747 

(1873), 18 pt. 1 Stat. 931 (1875), recodified at 44 pt. 1 Stat. 1194, § 51, repealed 

by Act of Aug. 12, 1935, § 3, 49 Stat. 609.  See Cavanaugh v. Smith, 84 Ind. 380 

(1882); see also Faurote v. Carr, 108 Ind. 123, 9 N.E. 350 (1886).  This statute 

provided, "No sum of money due, or to become due, to any pensioner, shall be 

liable to attachment, levy, or seizure by or under any legal or equitable process 

whatever, whether the same remains with the pension office, or any officer or agent 

thereof, or is in course of transmission to the pensioner entitled thereto, but shall 

inure wholly to the benefit of such pensioner." U.S. Rev. Stat. § 4747.  Because the 

particular words of this statute -- "money due, or to become due" -- clearly limited 

the exemption to an undelivered sum of money, the courts held the exemption was 

inapplicable once the money had been transmitted to the pensioner.  See, e.g., 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

Cavanaugh, 84 Ind. at 386.  Moreover, the purpose of the statute was narrow:                 "to 

prevent the machinery of government from being stopped by a withdrawal of 

compensation from those charged with the administration of government affairs."  

Id.  It was in this context the Indiana legislature developed a practice of expressly 

distinguishing between pre- and postdistribution scenarios.  See In re Miller, 435 

B.R at 567 n.6.

       Washington's history is dissimilar.  Before today, our legislature had no need 

to unequivocally distinguish between pre- and postdistribution in its antigarnishment 

statutes.  It is therefore inappropriate to construe them by looking to how some 

courts in other jurisdictions have interpreted antigarnishment statutes of states that 
have historically made the distinction.1  

       We should focus on the fact that RCW 41.26.053  is worded similarly to 

provisions that have been recognized as sufficiently comprehensive to protect 

benefits both pre- and postdistribution.   Indeed, RCW 41.26.053  is arguably 

stronger than the Railroad Retirement Act's antigarnishment provision, which 

prohibits annuity funds from being subject to "garnishment, attachment, or other 

       1 At any rate, in contrast to Miller, the weight of authority holds, without requiring 
unequivocal language, that the exemption status of money is not destroyed upon its 
deposit in a bank.  See, e.g., J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011); 
Annotation, Deposit of Exempt Funds as Affecting Debtor's Exemption, 67 A.L.R. 1203 
(1930) (citing cases); Kruger v. Wells Fargo Bank, 11 Cal. 3d 352, 521 P.2d 441, 113 
Cal. Rptr. 449 (1974); Surace, 161 N.E. 315; In re Hunt, 250 B.R. 482 (Bankr. E.D.N.Y. 
2000); Waggoner, 702 S.W.2d 808; In re Bresnahan, 183 B.R. 506 (Bankr. S.D. Ohio 
1995); Sears, Roebuck & Co. v. Harris, 854 P.2d 921 (Okla. Civ. App. 1993); State ex 
rel. Nixon, 969 S.W.2d 801; Tom v. First Am. Credit Union, 151 F.3d 1289 (10th Cir. 
1998); United States v. Smith, 47 F.3d 681 (4th Cir. 1995); In re Williams, 171 B.R. 451 
(Bankr. D.N.H. 1994).

                                              -14- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

legal process under any circumstances whatsoever."              45 U.S.C. § 231m.  Also, 

RCW 41.26.053 is more comprehensively worded than the antigarnishment statute 

contained in the Civil Service Retirement Act.  As noted, both have been 

consistently construed to protect benefits after distribution.  Unlike some other 

statutes,  RCW  41.26.053  does not base the exemption upon whether the 

government holds the money.  Under the statute's broad grant of immunity, the 

exemption attaches to the retirement allowance itself and, when the allowance is 

paid to the recipient, it is shielded from any process of law whatsoever.

       The recent case of J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011), is 

particularly instructive in achieving a proper statutory construction.  In that case, the 

Supreme Court of Nebraska addressed the issue whether the antigarnishment 

provision of its State Patrol Retirement Act (Neb. Rev. Stat. §§ 81-2014 to 81-

2041) continued to exempt benefits after they had been received by the beneficiary.  

Id.  Like this case, that case involved a civil judgment creditor.  Billy Hobbs was a 

former state trooper who was convicted of sexually assaulting a minor child.  Id. at 

228.  The guardian of the minor child, J.M., brought suit on the child's behalf and 

won a substantial civil judgment.  Id.  The guardian sought to execute the judgment 

against Hobbs' retirement pension.  Id.  The court was asked to decide whether 

Hobbs' pension benefits were exempt from execution, even after the funds passed 

into his hands.  Id. at 228-29.  The Nebraska antigarnishment statute provides:

              "All annuities or benefits which any person shall be entitled to 
       receive under [the Act] shall not be subject to garnishment, attachment, 
       levy, the operation of bankruptcy or insolvency laws, or any other process 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

       of law whatsoever and shall not be assignable except to the extent that such 
       annuities or benefits are subject to a qualified domestic relations order 
       under the Spousal Pension Rights Act."

Id. at 229 (quoting Neb. Rev. Stat. § 81-2032).

       The court rejected J.M.'s argument that the statute draws an implicit 

distinction between the funds a beneficiary "'shall be entitled to receive'" and funds 

the beneficiary already has received.  Id.  J.M. argued the distinction was warranted 

because the statute uses the words "'annuities'" and  "'benefits,'" which J.M. 

alleged "refer to a right to payment, not to the payment or proceeds themselves."  

Id.  The court reasoned that "[t]here is simply no merit to J.M.'s argument that 

'annuities' and 'benefits" in [the statute] refer to something other than payments of 

money."  Id. at 230.  The court, therefore, rejected the notion that the Nebraska 

legislature intended only to "protect the Nebraska State Patrol Retirement System 

from having to deal with the administrative burdens of execution and garnishment,"

and not to protect the money received by the beneficiary of the act.  Id. at 229. In 

respect to whether the pension money retained its exempt character upon passing to 

the beneficiary, the court reasoned that the presence or absence of specific language 

referencing postdistribution benefits was unimportant: "[T]his distinction has been 

consistently rejected by courts discussing statutes, such as § 81-2032, that do not 

contain such language.  The language of § 81-2032 is still clearly intended to protect 

benefits under the Act from legal process."  Id. at 230 (footnote omitted).

       Acknowledging that antialienation provisions may sometimes serve to cut off 

possible avenues of recovery for victims, the court noted that "courts have held that 

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Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

antiattachment provisions are to be given effect even where a creditor is attempting 

to collect restitution for a criminal act, or a tort judgment."  Id. at 230-31 (citing 

Guidry v. Sheet Metal Workers Nat'l Pension Fund, 493 U.S. 365, 110 S. Ct. 680, 

107 L. Ed. 2d 782 (1990); Higgins v. Beyer, 293 F.3d 683 (3d Cir. 2002); E.W. v. 

Hall, 260 Kan. 99, 917 P.2d 854 (1996); Younger v. Mitchell, 245 Kan. 204, 777 

P.2d 789 (1989)).  The court looked to the United States Supreme Court, which has 

explained that "it is not appropriate for a court to approve any generalized equitable 

exception to an antigarnishment provision, even for criminal misconduct, despite a 

'natural distaste for the result.'"  Id. at 231 (quoting Guidry, 493 U.S. at 377).  An 

antigarnishment provision

       reflects a considered congressional policy choice, a decision to safeguard a 
       stream of income for pensioners (and their dependents, who may be, and 
       perhaps usually are, blameless), even if that decision prevents others from 
       securing relief for the wrongs done them.  If exceptions to this policy are to 
       be made, it is for Congress to undertake that task. 
         As a general matter, courts should be loath to announce equitable 
       exceptions to legislative requirements or prohibitions that are unqualified 
       by the statutory text.  The creation of such exceptions, in our view, would 
       be especially problematic in the context of an antigarnishment provision.  
       Such a provision acts, by definition, to hinder the collection of a lawful 
       debt.

Id. (quoting Guidry, 493 U.S. at 376-77).  The Nebraska court correctly held the 

antigarnishment statute at issue precluded the relief sought by J.M.  Id. at 232.  We 

should similarly construe RCW 41.26.053 consistent with its broad language and 

clear statutory purpose and hold the pension benefits at issue are not subject to 

garnishment.

       As a final note, this liberal construction avoids the conundrum the majority's 

                                              -17- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

view creates but cannot explain.  In a footnote, the majority acknowledges that the 

pension exemption statute for volunteer firefighters and reserve officers is worded 

differently from the LEOFF statute, in that it references benefits "'paid or payable.'"

Majority at 13 n.13.  Because this language is all-important under the majority's 

strict construction, the majority is left to conclude that volunteer firefighters and 

reserve officers have been granted greater protection than regularly employed 

firefighters, law enforcement officers, and other state and local government workers.  

Id. Yet, the majority recognizes that "[n]either the statute nor the legislative history 

offers any reason why the legislature would provide greater protection . . . ."  Id. In

my view, there is no reason.  The legislature has not treated these employees 

differently because it has not required the magic "paid or payable" language to 
effectuate the clear purpose of antigarnishment provisions.2 Rather than looking for 

       2 The majority makes a similar error when it relies on RCW 6.15.020 to conclude 
the pension money here is not as protected as federal pension money.  Majority at 6.  It 
identifies a simple contrast in the statute's language dating from 1890 in subsection (2), 
applicable to federal benefits received by Washington citizens, and language crafted in 
1987 in subsection (3), applicable to private employee pension plans.  What gets lost in 
this casual reference to RCW 6.15.020 is the purpose of that statute.  It was enacted 
pursuant to authority granted in the United States Bankruptcy Code, to strengthen the 
exempt status of both public and private pension plans in response to changes in federal 
bankruptcy law.  See RCW 6.15.020(1); Final Legislative Report, 50th Leg., at 193-94 
(Wash. 1987). (explaining this purpose to restore prior protections to private plans under 
ERISA).  Importantly, the legislature recognized when it added subsection (2) that it was 
equalizing the treatment of similar plans, not distinguishing between them, as the majority 
suggests.  In fact, the 1987 Final Legislative Report emphasized that "[c]urrent state law 
protects the pension benefits of federal and state employees from creditors, whether in or 
outside bankruptcy."  Final Legislative Report, 50th Leg., at 193.  The importance of 
RCW 6.15.020 has nothing to do with the proper interpretation of RCW 41.26.053, but 
rather resides in its interface with federal bankruptcy law -- and, not inconsequentially, 
federal tax law.  See RCW 6.15.020(3), (4), (5) (referencing Internal Revenue Code 
provisions).  As amicus curiae, Washington State Patrol Troopers Association aptly 
observe,  "Judicial erosion of Washington's antialienation statutes endangers the tax 
exempt status of Washington's public pension plans." Br. of Amicus Curiae at 13.

                                              -18- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

significance in language variations where none was intended, we should read the 

LEOFF antigarnishment provision with a steady eye on its important purpose.

                                       CONCLUSION

       The purpose of LEOFF is to preserve pension benefits so that employees may 

provide for themselves and dependent family members.  RCW 41.26.053 must be 

liberally construed to achieve this important purpose.  The majority reduces the 

antigarnishment provision to a meaningless protection for pensioners when it holds 

that benefits may be attached the instant the money leaves the government's hands 

and passes to the pensioner.  Consistent with the statutory language and its clear 

purpose, and guided by the weight of judicial authority interpreting similar statutes, I 

would hold that benefits paid under the Act retain their exempt status under RCW 

41.26.053 after being deposited into the beneficiary's personal bank account.  I 

respectfully dissent.

                                              -19- 

Anthis, et al. v. Copland, 85230-8 (Stephens, J. Dissent)

AUTHOR:
       Justice Debra L. Stephens

WE CONCUR:
       Chief Justice Barbara A. Madsen

       Justice Susan Owens

       Justice Mary E. Fairhurst

                                              -20-